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Family Law Agreements

2019-06-10T01:05:21Z

Beatrice McCutcheon: Added sentence re: Rick v. Brandsema

{{JPBOFL Start Chapter
| Related = [[Cohabitation Agreements|Cohabitation Agreements]]{{·}}[[Marriage Agreements|Marriage Agreements]]{{·}}[[Separation Agreements|Separation Agreements]]{{·}}[[Enforcing Family Law Agreements|Enforcing Agreements]]{{·}}[[Changing Family Law Agreements|Changing Agreements]]
}}
{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]] and [[Gagan Mann]]
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|link = [https://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements]
}}A family law agreement — like a cohabitation agreement, a marriage agreement or a separation agreement — is a contract, just like the contract you might have with an employer or a landlord: each party promises to do something in exchange for something the other party promises to do, and both parties expect that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to settle the issues that come up when a relationship ends, although cohabitation agreements and marriage agreements are sometimes also used to settle how a relationship will be managed.

This chapter begins with an overview of family law agreements, and discusses the role they play during relationships and when relationships end. It also reviews the typical elements of a family law agreement and discusses some of the things you might wish to keep in mind when negotiating and drafting an agreement yourself.

The other sections of this chapter look at [[Cohabitation Agreements|cohabitation agreements]], [[Marriage Agreements|marriage agreements]] and [[Separation Agreements|separation agreements]] in more detail, and provide additional information about [[Enforcing Family Law Agreements|enforcing an agreement]] and [[Changing Family Law Agreements|changing an agreement]].

==Introduction==

People who sign a family law agreement when they marry or plan to marry are entering into a ''marriage agreement'', also called a pre-nuptial agreement. People who sign an agreement when they start living together or plan on living together are entering into a ''cohabitation agreement'', also called a living-together agreement. Under the ''Family Law Act'', most couples who live together for two years have the same rights on separation as couples who are married, so there is no significant difference between a marriage agreement and a cohabitation agreement. Many people make agreements that will be effective regardless of whether they are living together or married.

The usual point of agreements like these is to say what will happen if the relationship breaks down, although they can also talk about how things will be handled during the relationship or if one person dies during the relationship. The weird thing about marriage agreements and cohabitation agreements is that although they mostly talk about what will happen when a relationship ends, that may not happen for five years or 20 years, or it may never happen at all. As a result, it can be difficult to make plans based on what the family's circumstances might be like at some unknown point in the future when the relationship ends.

Married spouses, unmarried spouses and other unmarried couples who enter into an agreement after their relationship has broken down are entering into a ''separation agreement''. A separation agreement is a contract that describes how some or all of the legal issues arising from the end of the relationship have been resolved.

All of these different kinds of agreement are legal contracts that describe the parties' rights and obligations towards one another. They can deal with everything from who gets to keep the Kenny G boxed CD set, to where the children will live, to how the parties will deal with their mutual friends, to who gets to keep the Ford Pinto. While these agreements are usually all-inclusive, they don't have to be; some issues can be left aside for the courts to deal with. A couple might sign a ''property agreement'' dealing with just property issues, or a ''parenting agreement'' dealing with just the care of the children when their relationship has ended.

Despite the intentions of the couple when they signed an agreement, the terms of their agreement may still wind up being reviewed by the court, and possibly changed, if one of the parties later has a problem with the agreement. While the court will pay a great deal of respect to any written agreement, if an agreement was unfairly negotiated, is significantly unfair or becomes significantly unfair the court will generally be willing to look into things and perhaps set aside the agreement and make an order on different terms.

The ''[[Family Law Act]]'' encourages people to make agreements resolving their disputes rather than going to court. Section 6 of the act says this:

<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
<blockquote><blockquote><tt>(a) to resolve a family law dispute, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) respecting</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a matter that may be the subject of a family law dispute in the future,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the implementation of an agreement or order.</tt></blockquote></blockquote></blockquote>
<blockquote><tt>(2) A single agreement may be made respecting one or more matters.</tt></blockquote>
<blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote>

Under s. 214 of the act, the court may:

#set aside part of an agreement, without changing the rest of the agreement,
#incorporate all or part of an agreement into an order, or,
#make an order replacing all or part of an agreement.

The test the court must apply in deciding whether to set aside an agreement changes depending on the subject matter of the particular part of the agreement at issue. Some tests, like the test to make a child support order in place of an agreement on child support, are really easy; others, like the test to set aside an agreement on property division, are really hard. If you're asking the court to set aside an agreement, you must read the parts of the ''Family Law Act'' that deal with setting aside agreements.

==The role of family law agreements==

The fundamental purpose of all family law agreements is to settle an issue that has come up, or one that could come up, and might be the subject of a legal dispute.

It is almost always better to settle a dispute yourself rather than have the courts resolve your problem for you. It is usually cheaper to settle a dispute rather than take it to court, and negotiated settlements usually give you the best possible chance of maintaining a halfway decent relationship with each other in the future. Family law agreements also give you an incredibly flexible way of resolving your dispute. Your agreement can be tailored to suit your particular circumstances and needs, and can be far more creative in resolving a problem than a court order ever could be.

===Marriage and cohabitation agreements===

Marriage agreements and cohabitation agreements usually talk about what will happen if the parties' relationship breaks down, although they can sometimes talk about how things will be handled during the relationship. These sorts of agreements are normally made before the parties marry or begin to live together, but can be made at any time during the parties' relationship.

It is important to know that you do not have to enter into a marriage or cohabitation agreement just because your partner wants you to, or just because you're about to marry or start living with someone. While your partner may want you to sign an agreement, you are under no legal obligation to do so. With or without a family law agreement, remedies are almost always available under the common law, the ''[[Divorce Act]]'', or the ''[[Family Law Act]]'' if problems crop up later on.

Marriage agreements and cohabitation agreements aren't always appropriate. Most people who enter into these agreements have been married before (once bitten, twice shy!), are coming into the relationship with children, are coming into the relationship with significant assets or significant debts, or expect to receive significant assets during the relationship. A young couple who have no significant assets or debts and no children don't necessarily have any particular need to sign a marriage agreement or a cohabitation agreement.

====During the relationship====

The sorts of terms people want to apply during their relationships are most often financial. That being said, family law agreements are incredibly flexible and can require the parties to do anything imaginable, from caring for the children during the work week, to having a certain number of holidays each year, to always wearing purple shirts on Thursdays, to sharing the household chores. Typically, however, people want to address issues like these:

*How will a joint bank account be managed? Will the parties contribute a fixed monthly amount to the joint account?
*How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared proportionately to the parties' incomes?
*How will unexpected expenses be paid for? Will both parties pay for household repairs?
*How will savings, RESPs, RRSPs and retirement funds be managed? Will each party be required to contribute a fixed monthly amount?
*How will each party's income during the relationship be handled? What will happen if someone gets an unexpected windfall, like a lottery win or an inheritance?

Some agreements do not deal with these issues, and some paint only a vague picture of the parties' respective financial responsibilities. Other agreements are mind-bogglingly detailed and cover even the tiniest details. In my view, unless someone is spectacularly anal retentive, the less said in a marriage agreement or cohabitation agreement about how a relationship will be managed, the better. You wouldn't want every aspect of your relationship governed by a legal contract ― that's exactly the sort of thing that encourages relationship breakdown.

====After the relationship====

The most common reason why people enter into a marriage agreement or a cohabitation agreement is to specify how property will be dealt with if the relationship comes to an end, although agreements like these can also deal with the payment or waiver of spousal support. Typically, however, these sorts of agreements just try to preserve a party's interest in an asset after the relationship has ended.

Agreements about the care of children or the payment of child support are only binding if they are made after separation or when the parties are about to separate.

===Separation agreements===

Separation agreements are entered into after a relationship has broken down. There is no need for the parties to have moved out or gotten a divorce when the agreement is made; in fact, when a couple is married it's best to deal with the separation agreement before you apply for a divorce, just in case you can't reach an agreement.

Separation agreements are always the product of negotiations between the parties and, hopefully, their lawyers. The goal of a separation agreement is to deal with all or some of the issues related to the separation in a way that both parties are as happy with as possible. Separation agreements usually deal with the following issues:

*How will the children be cared for? How will important parenting decisions about the children be made?
*If the children will be living mostly with one parent, how much time with the children will the other parent have?
*How much child support be paid, and which of the children's expenses will be shared between the parents?
*Should a party receive spousal support? If so, how much support should be paid and for how long?
*How will the family property be divided? Should the parties' excluded property be divided?
*How will the family debt be divided?

Separation agreements can cover everything that is a problem for a couple, even things that the court would not ordinarily deal with or be able to deal with.

Separation agreements are binding from the moment they are signed by both parties, unless the agreement says something different. They operate from the time they are made and, where children, child support, or spousal support are issues, they often continue to operate indefinitely into the future. Theoretically, a separation agreement will be binding on the parties until they die. In practice, however, most people stop relying on the agreement once the children have grown up, left home and become independent, even though their agreement continues to be legally binding on them.

==The elements of a family law agreement==

The point of a family law agreement is to make a legal contract that both parties intend to be bound by and that the court can and will enforce if a party doesn't live up to their obligations. In order to be legally binding and enforceable, agreements must be negotiated, drafted and signed in a certain way and include certain terms.

===Negotiating the terms of an agreement===

Family law agreements are about really important things like where the children will live, who will pay support to whom and how the parties will divide their property. As a result, the terms of the agreement are almost always the result of lots of talking and negotiating. It is critical that:

*each person has all of the information that is necessary, to figure out what's a good deal and what's a bad deal,
*each person understands their legal rights and obligations, to know what's a good deal and what's a bad deal,
*each person is able to express their views and contribute to negotiating the agreement, and
*there is no pressure to reach an agreement on either party, beyond the importance of reaching a reasonable agreement and saving money on legal fees and court costs.

Properly negotiating and entering into a family law agreement isn't simply a matter of putting the important parts on paper and signing the document. There must be fairness in the way an agreement is negotiated, fairness in the way it is drafted, and fairness in the way it is signed. The people who are negotiating the agreement must be able to understand the agreement, be capable of agreeing to it, and agree to it voluntarily. This is what s. 93(3) of the ''[[Family Law Act]]'' says about agreements for the division of property and debt:

<blockquote><tt>(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement ... only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

This is fairly straightforward:

*you have to make full disclosure of your income, your expenses, your assets and your debts, and any other information that is important to the agreement,
*you can't exploit the other party's weaknesses to get a good deal for yourself,
*you have to make sure that the other party understands exactly what the agreement means and how it will affect their life, both now and in the future, and,
*you can't force or pressure someone to sign the agreement, you can't cheat someone into signing the agreement, and the agreement must be reasonable.

Although s. 93 is about property, s. 164(3) says the same thing about agreements for spousal support, and I think that this is a pretty reasonable standard to set for all other family law agreements. If you don't want the court to throw out your agreement, you've got to take the time to do it right, and you've got to be fair and not take advantage of the other party.

The legal formalities common to all family law agreements are these:

*The parties to the agreement must provide full financial disclosure to each other and must be completely honest in describing their circumstances.
*In most cases, the agreement must be in writing. While oral agreements have been upheld by the courts, it can be very difficult to establish the terms of the agreement, and oral agreements cannot be enforced until a court has determined what the terms of the agreement are.
*The parties can't be under any sort of legal disability such as insanity.
*The parties must both sign the agreement of their own free will, without unfair pressure by the other party.
*The agreement must be properly executed, which means being signed by each of the parties in the presence of at least one witness who is not a party to the agreement.

As a general rule, each person who enters into a family law agreement should get ''independent legal advice'', advice from their own lawyer, before the agreement is signed about:

*what the agreement means,
*what rights and obligations the agreement gives to each party,
*how the agreement does or doesn't limit the other legal remedies that might be available,
*how the agreement may affect each person over the short- and long-term, and,
*the options and remedies that would have been available if everyone had decided to go to court instead of settling things with an agreement.

Independent legal advice is important for two reasons: it ensures that the parties to the agreement know exactly what their rights and obligations are; and, it makes the agreement stronger by preventing a party from claiming later on that they didn't fully understand what the agreement meant or how it would impact them. If you really want to make sure that your agreement will stand the test of time, you've got to make sure that you and the other party have both seen a lawyer about the agreement!

===Drafting an agreement===

Lawyers often write family law agreements in a standard format using standard terms, tailored, of course, to the specific needs and circumstances of the parties. Just because family law agreements are often written using standard terms and standard language doesn't mean that an agreement using different wording will be set aside because it expresses things in a different way. As long as it is clear what the intentions of the parties are and as long as the agreement is fair and continues to be fair, the courts will usually uphold the agreement.

A British Columbia company called Self-Counsel Press publishes a variety of do-it-yourself agreement kits along with instructions for completing and executing them, or you might try [http://www.lawdepot.com LawDepot.com], an American company which says that it has family law agreement kits suitable for British Columbia.

There are still other resources available for free that might help, and your library might have a copy of the Self-Counsel Press materials available for loan. Guides to drafting family law agreements are also available at a branch of [http://www.courthouselibrary.ca/about/libraries.aspx Courthouse Libraries BC]; one of the very best is the ''[https://www.courthouselibrary.ca/catalogue-item?cid=7280 Family Law Agreements: Annotated Precedents]'' published by the Continuing Legal Education Society of British Columbia.

What follows are examples of the typical elements of a family agreement, using the example of John Doe and Jane Doe, a married couple who are entering into a separation agreement. These examples are not complete and are provided only to illustrate a point; they should not be used to draft your own agreement!

====The introduction====

The introduction to an agreement, also known as the ''exordium'' (isn't that a great word?), is the portion of an agreement that identifies the parties to the agreement, provides a title for the agreement, and sets out the date on which the agreement is made. This section typically looks like this:

<blockquote><tt>THIS SEPARATION AGREEMENT is made on this the 1st day of March, 2013.</tt></blockquote>
<blockquote><tt>BETWEEN:</tt></blockquote>
<blockquote><blockquote><tt>Jane Doe 
of 123 King Street, Anytown, British Columbia 
("Jane")</tt></blockquote></blockquote>

<blockquote><tt>AND:</tt></blockquote>
<blockquote><blockquote><tt>John Doe 
of 456 Queen Street, Anytown, British Columbia 
("John")</tt></blockquote></blockquote>

====The recitals====

The recitals describe the parties' circumstances when the agreement is made in a summary sort of way. They include the basic facts of their relationship, give the names and birth dates of any children, describe the property and debts that the agreement deals with, and describe the parties' incomes, among other things.

The recitals are the foundation on which the agreement is built. They should be sufficient to tell a complete stranger why the parties entered not just into any agreement but this particular agreement. It is important that the recitals be as complete as possible because if anyone tries to challenge the agreement in the future, the recitals will set out the facts that were important to the parties at the time the agreement was made.

In the case of a separation agreement, the recitals often look something like this:

<blockquote><tt>WHEREAS:</tt></blockquote>
<blockquote><tt>A. Jane and John were married on August 1st, 1996 at Anytown, British Columbia.</tt></blockquote>
<blockquote><tt>B. There are two children of the marriage:</tt></blockquote>
<blockquote><blockquote><tt>i) Buckminster Elliot Doe, born on March 5th, 1998, and 
ii) Randall Eustace Doe, born on April 11th, 2000</tt></blockquote></blockquote>
<blockquote><tt>(together, "the Children").</tt></blockquote>
<blockquote><tt>C. Jane is presently employed part-time as a mason by ABC Construction Ltd. and has an annual income of approximately $34,000.</tt></blockquote>
<blockquote><tt>D. John is presently employed full-time as a chef by DEF Resorts Inc. and has an annual income of approximately $45,000.</tt></blockquote>
<blockquote><tt>E. Jane and John have lived separate and apart since December 25th, 2012 (the "Date of Separation"), when Jane left the family home.</tt></blockquote>
<blockquote><tt>F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had parenting time with the Children every other weekend from Friday after school until Sunday at 7:00pm.</tt></blockquote>

The rest of the recitals will continue in the same way. Other recitals might describe the make, model and value of each party's car, the address and value of the family home, the credits cards owned by the parties and the amounts owing on them, and so on. Essentially, every fact that is relevant to the agreement should be put into the recitals to the agreement.

By the way, the parts where you see a capitalized word in brackets, like <tt>(the "Date of Separation")</tt>, are called ''defined terms''. These are very helpful because you can use a defined term to refer to the same thing throughout an agreement. Instead of saying <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia</tt> every time you need to talk about that property, you could say <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia (the "Family Home")</tt> once, and whenever you need to mention the property after that you can just say <tt>the Family Home</tt>.

====The operative clauses====

The operative clauses of an agreement are the nuts and bolts of the settlement. They are the essential terms of the agreement and describe what each party's rights and obligations are. In the case of a separation agreement, the operative clauses might look like this:

<blockquote><tt>JANE AND JOHN AGREE THAT:</tt></blockquote>
<blockquote><tt>1. Jane and John will live separate from each other.</tt></blockquote>
<blockquote><tt>2. Neither party will molest, annoy or harass the other or his or her friends, relatives and associates.</tt></blockquote>
<blockquote><tt>3. Except as is specifically provided in this Agreement, Jane and John will each keep all property presently in their possession and control as their own, free and clear of any and all claim by the other.</tt></blockquote>
<blockquote><tt>THE CHILDREN</tt></blockquote>
<blockquote><tt>4. Jane and John are the guardians of the Children, and John will have the Children's primary residence.</tt></blockquote>
<blockquote><tt>5. Jane and John will exercise all parental responsibilities with respect to the Children in consultation with each other. Jane and John will make every effort to agree on decisions that need to be made concerning the Children, and will make their decisions in the best interests of the Children. However, in the event that Jane and John cannot agree on a particular decision, John will have the right to make that decision.</tt></blockquote>
<blockquote><tt>6. Jane will have parenting time with the Children every Wednesday night, from the end of school or 4:00pm until 8:00pm, and on every other weekend from the end of school or 4:00pm on Friday until the following Sunday at 8:00pm.</tt></blockquote>
<blockquote><tt>7. Jane will have additional parenting time with the Children for one-half of the Children's winter school holiday, the whole of the Children's spring school holiday, and for two two-week periods during the Children's summer school holiday.</tt></blockquote>
<blockquote><tt>CHILD SUPPORT</tt></blockquote>
<blockquote><tt>8. Jane will pay child support to John in the amount of $525 on the first day of each and every month, continuing for so long as the Children remain "children" as defined by the ''Family Law Act''.</tt></blockquote>
The rest of the operative clauses will continue in the same way. Other paragraphs might deal with specific property such as a car or the family home, the payment of debts, and the sharing of the children's expenses. The operative clauses might also say who will pay what bills, whether and for how long spousal support will be paid, who will pay for the divorce if the couple are married, which laws will govern the interpretation of the agreement, and so on.

====The signatures====

The last part of a family law agreement is where each of the parties will sign their names in the presence of a witness. The parties can sign the agreement at the same time or separately, at different times and in different locations. Either way, each party's signature must be witnessed, and the witness, after seeing the party sign the agreement, must sign their name to the agreement. The witness usually provides some other information, typically their full name, address, and occupation. The page with the parties' signatures should include at least one operative paragraph of the agreement.

<blockquote><tt>SIGNED by Jane       ) 
on March 20, 2013,   ) 
at Anytown, BC,      ) 
in the presence of:  ) 
                     ) 
___________________  )  ___________________ 
Signature            )  JANE DOE 
___________________  ) 
Name                 ) 
___________________  ) 
Occupation           ) 
___________________  ) 
Address              ) 
___________________  )</tt></blockquote>

This would be repeated for John's signature and that of John's witness.

The witnesses to the parties' signatures do not become parties to the agreement and the agreement cannot be enforced against them. The signature of the witness simply says that they saw the particular party sign the agreement, in case someone ever denies signing the agreement.

It is also a good idea for each of the parties and the witnesses to initial each page of the agreement, other than the page with the parties' signatures.

For a quick summary of how to execute a family law agreement, see the ''How Do I?'' part of this resource for [[How Do I Execute a Family Law Agreement?]] Look under ''Family Law Agreements''.

==Negotiating considerations==

For many couples, negotiations begin and end over a cup of coffee at the local Tim Hortons. This is fine, providing that everyone is relatively friendly and the parties are approaching their negotiations from a relatively level footing. The court will respect the agreements that negotiations like these produce, on the basis that people are free to make their own bargains and to contract to whatever they like.

===The views of the court===

Problems can arise when negotiations aren't completely fair. In a 2003 case from the Supreme Court of Canada, ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303, the court held that family law agreements should not be considered under exactly the same standards that are applied to ordinary commercial contracts because family law agreements are usually negotiated at "a time of intense personal and emotional turmoil, in which one or both of the parties may be particularly vulnerable." Some of these vulnerabilities were described in a 2000 case from Ontario, ''[http://canlii.ca/t/1w9mm Leopold v. Leopold]'', 2000 CanLII 22708 (ON SC):

<blockquote>"One party may have power and dominance financially, or may possess power through influence over children ... often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other. The complex marital relationship is full of potential power imbalance."</blockquote>

In a 2009 case, ''[http://canlii.ca/t/22hw5 Rick v. Brandsema]'',[2009] 1 SCR 295 the Supreme Court of Canada added another factor to this list, incomplete or misleading financial disclosure. In this case, the court noted that parties can only give genuine and informed consent to an agreement if they have the information they need to decide if the agreement is acceptable.

Potential unfairness, then, can come from:

*exploiting a party's emotional or psychological vulnerability,
*influence over a party through dominance and oppression,
*control over the family finances,
*influence over the children's allegiances, or
*access to or control over the release of financial information.

Where unfairness is found, the court will be more likely to set aside an agreement or to make an order on terms different than those set out in an agreement. As a result, people negotiating family law agreements must take special care to ensure that everyone is on a level playing field and are negotiating from positions of relative equality. Here are some things that can help:

*'''Independent legal advice:''' Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the lawyers who provided the independent legal advice witness the parties' signatures on the agreement, and sign certificates of independent legal advice.
*'''Respect vulnerabilities:''' Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in their right mind, down tools and come back to the table later. Consider the need for counselling or therapy before continuing.
*'''Make full disclosure:''' Always make full disclosure of all financial facts, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment account balances, outstanding debts, property values, values of shares and options, art and jewelry appraisals, and so on.
*'''Never lie:''' Intentionally misleading someone about the value of something, the amount of a debt, past income and future income expectations, or any other relevant fact will always undermine the strength of an agreement. Be scrupulously honest and transparent at all times.
*'''Know the law:''' The ''Divorce Act'' and the ''Family Law Act'' say when and why spousal support and child support should be paid. The ''Divorce Act'' and the ''Family Law Act'' talk about how much time children should have with their parents. For married spouses and unmarried spouses, the ''Family Law Act'' talks about how property and debt should be divided. Know how the law treats these different subjects and ensure the agreement roughly reflects the law.

===The tests under the ''Family Law Act''===

Unfairness is a key element of the tests under the ''[[Family Law Act]]'' to set aside the parts of agreements about the division of property and debt and about spousal support, as we saw under s. 93(3), reproduced above.

Under s. 44(4) of the act, the court can set aside the parts of agreements about parenting arrangements if the parenting arrangements are not in the best interests of the child:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

The same test is used to set aside the parts of agreements about contact.

Under s. 148(3), the court can set aside the parts of agreements about child support if it would make a different order:

<blockquote><tt>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.</tt></blockquote>

Section 150 is the part of the ''Family Law Act'' dealing with how child support is calculated.

==Drafting considerations==

First of all, it is always best to have a lawyer prepare any sort of contract, including family law agreements. While the Self-Counsel Press forms will likely be considered to be legally binding, a family law lawyer will be best able to advise you of the duties and obligations involved in the contract, the rights you will be giving up by entering into the contract, and other unexpected but critical issues the agreement might involve, such as:

*income tax consequences,
*the transfer of property,
*dividing property located outside of British Columbia, or,
*liabilities to third parties and creditors.

If you can't or don't want to hire a lawyer, here are a few things you will want to keep in mind.

===Don't use "legalese"===

Some people are tempted to use words that sound particularly legal, like using the word "issue" to refer to children. Avoid this at all costs, and try to use plain language to express the content of your agreement. Words like "issue" can have a particular legal meaning ― in this case first-generation, directly-descended heirs ― that are often at odds with what people think the term means. As a result, if you use legalese there is a risk that your contract won't wind up meaning quite what you think it means.

===Be as clear as possible===

Ask yourself these questions:

*What would a complete stranger think of your agreement?
*Would the stranger be able to understand what you mean?
*Are any parts of the agreement vague or capable of more than one meaning?
*Do you understand what the agreement means?

If a term of your agreement has more than one possible interpretation, it may lead to future conflict between yourself and the other party. If there are two cars, make sure each car is identified separately and distinctly, using defined terms like "Jerry's Ford Pinto" and "Mary's Pontiac Sunfire," and always refer to those cars in that way, and never just as "the car." If a term might mean more than one thing, change it to be more precise and more specific!

Also, remember that while you and your partner may know exactly what "the old spoons" might mean, a court may not, especially if there are a lot of different sets of spoons involved. It's best to be specific, like "the Teaspoons of the World silver spoon collection Jerry inherited from his grandmother Mabel."

===Avoid agreeing to agree===

An agreement that requires a further, future agreement — "the household furniture will be divided as Mary and Jerry will agree" — is open to further, future conflict. Whenever possible, try to limit an agreement to all that can be agreed upon at the moment and try to agree on as much as possible.

===Remember the loose ends===

It is always best to tie up any loose ends. This may require some thought as it isn't always obvious what else needs to be included. If a house has to be sold, for example, who will list it and hire the realtor? Who will live in it until the sale? How will the list price be chosen? Under what conditions will the list price be reduced? Are there any repairs or improvements that need to be made, and if so who will do them and how will they be paid for? How will the sale proceeds be dealt with? What debts will be paid from the sale proceeds? These things should all be specified, where at all possible.

===Be realistic===

You've got to live with the agreement; make sure it is something you can live with, not just now but in three or five years. Make sure that the obligations you must fulfill under the agreement are obligations that you can reasonably fulfill. Promising to pay off a credit card within a year, for example, isn't always the easiest thing to do and it isn't always practical.

Sometimes people who have separated are desperate to have done with it, to have a deal signed and finished. If you feel rushed into an agreement, step back and take two (or twenty-two) deep breaths. The world will not end if you take a moment or a week to think about something. It is critical that whatever you wind up agreeing to is something that you will still be okay with next month, next year, and in 10 more years. It can be very difficult to change an agreement in the future, especially one about division of property or debts, if only one of the parties wants the agreement to be changed. Be patient and take your time.

===Use sample clauses with caution===

Before copying a term from someone else's agreement into your own agreement, make sure you fully understand what that term means. A clause that suits one couple in one situation may be entirely inappropriate for another couple. It is all too easy to adopt a term that sounds good or appropriate, without fully considering what that term means. Be cautious, be prudent, be careful.


==Resources and links==
===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Links===

* [https://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/agreements/making-agreement-after-you-separate Legal Services Society's Family Law Website: Making an agreement after separation]
* [https://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/agreements/making-agreement-when-you-live-together Legal Services Society's Family Law Website: Who can help you reach an agreement?]
* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2, Making Agreements]
*[http://www.clicklaw.bc.ca/resource/1259 Canadian Bar Association BC Branch: Script on marriage agreements and cohabitation agreements]
*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on Separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Gagan Mann]], June 3, 2019}}

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How Do I File an Agreement in Court?

2019-06-10T00:54:34Z

Beatrice McCutcheon:

{{JP Boyd on Family Law How Do I TOC|expanded=agreements}}

Written agreements about most family law issues can be filed in the Provincial Court or the Supreme Court under the ''Family Law Act'' and the rules of court:

* agreements on parental responsibilities and parenting time can be filed under s. 44(3) of the ''Family Law Act'',
* agreements on contact can be filed under s. 58(3),
* agreements on child support can be filed under s. 148(2), and
* agreements on spousal support can be filed under s. 163(3).

Agreements that are filed in court can be enforced as if they were orders of the court in which they are filed.

Among other things, this means that the Family Maintenance Enforcement Program can enforce an agreement for support exactly as it would enforce an order for support. Enforcement by FMEP is the usual reason why agreements are filed in court.

==When there is an existing court proceeding==

If a court proceeding has already been started, an agreement will normally be filed in the same court at same court registry where the proceeding was started. This helps to keep the whole court file together and prevents confusion about the status of the agreement and the status of the litigation.

If the action is in the Provincial Court, take one original copy of the agreement to the family law counter along with the file number of court proceeding. The court staff will help you with any paperwork. You don't need to see a judge or appear in court.

If the action is in the Supreme Court, take one original copy of the agreement to the family law counter along with something showing the style of cause of the court proceeding (the file number, the court registry, the name of the claimant and the name of the respondent). The court staff will give you a blank Requisition to fill out. You don't need to see a judge or appear in court.

==When a court action hasn't been started==

If there is no existing court action, it's up to you to decide where you'd like to file your agreement. Since FMEP will enforce an agreement whether it's filed in the Provincial Court or the Supreme Court, it's usually easiest just to go the courthouse nearest you.

All you need to take to the courthouse is one original copy of the agreement. The court staff will open a court file for the agreement and help you with any paperwork.

==Finding out if your agreement has been filed==

It can be a bit tricky to find out if an agreement has been filed in court or not, since there's no requirement that agreements be filed or that agreements that are filed be filed in the same court registry as any court proceedings between the parties to the agreement.

If there is an existing court action, go the court registry where the litigation began and ask to see the court file. Because family law files are sealed from the general public you'll need to bring some photo ID.

If there isn't an existing court action, you'll need to make at least two stops:
#First, go to the local Provincial Court to ask the staff to do a province-wide search to see if a Provincial Court file has been opened in your name and the name of the other party.
#Second, go to the closest Supreme Court to do the same search of Supreme Court files. You can also do the Supreme Court search using Court Services Online (https://justice.gov.bc.ca/cso/index.do), but you won't be able to get any details of the court file other than that one exists.

==For more information==

You can find more information about family law agreements in the chapter [[Family Law Agreements]].

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], June 9, 2019}}

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How Do I Change a Family Law Agreement?

2019-06-10T00:53:20Z

Beatrice McCutcheon: Revised to reference option of changing agreement through the courts

{{JP Boyd on Family Law How Do I TOC|expanded=agreements}}

The most common family law agreements are:
*''cohabitation agreements'', used when a couple plan on living together but don't plan on marrying,
*''marriage agreements'', used when a couple plan to marry, and
*''separation agreements'', used when married spouses or unmarried spouses have separated.

All of these agreements can be changed once they've been executed, as long as the parties to the agreement agree that the agreement should be changed. If the parties don't agree that the agreement should be changed, then the party who is unhappy with the agreement can ask the court to set aside the entire agreement or just part of it.

==What can be changed==

Normally, people only want to change one or two parts of an agreement while keeping the rest of the agreement intact. If you want a brand new agreement altogether, be careful. If the other party won't agree to throw out the old agreement, they will be entitled to go to court to enforce the old agreement, whether you're still happy with that agreement or not. This is, after all, why people execute contracts in the first place: they expect them to be permanent and they expect that the courts will hold people to the agreements they have made.

If the parties don't agree and one party asks the court to change the agreement, then, if the court is convinced that the agreement must change, it can set aside the entire agreement under the law of contracts or set aside the part of the agreement that is causing the problems and make an order in place of the part set aside.

==Making the new agreement==

Since, in most cases, the original agreement is being kept, changes to that agreement are made in new agreements called "amending agreements", "addendum agreements," or some other language to that effect. The new agreement is a separate contract that says in what ways the original contract is being changed. The new agreement will:

*state, in the recitals, the name and the date of the agreement that is being changed,
*briefly, also in the recitals, explain why the change is necessary, and
*state, for each change, the paragraph affected in the old agreement and how that paragraph is to be changed.

You might handle the first and second points by saying something like this: "this agreement amends the Separation Agreement executed by the parties on 1 April 2010," and "following the execution of the Separation Agreement, the schedule of the parties' parenting time has become unworkable as a result of certain changes in their hours of employment."
The individual changes might be handled like this:

<blockquote><tt>4. Paragraph 12 of the Separation Agreement will be cancelled and is replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>"Sally will return the children to Harry's care at 7:00pm or at the end of the evening shift, whichever is earlier. Sally will give Harry 24 hours notice in the event she is scheduled to work the evening shift on the days she is to return the children to Harry's care."</tt></blockquote></blockquote>
<blockquote><tt>5. Paragraph 36 of the Separation Agreement will be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>"Sally will pay child support to Harry in the amount of $425 per month for as long as the children remain children of the marriage as defined by the ''Divorce Act''."</tt></blockquote></blockquote>

The key points here are that you must specifically identify the parts that are to be changed and how they are being changed, and the new language must be as clear and unambiguous as the language of the original agreement.

==Executing the new agreement==

The new agreement must be executed in front of a witness or witnesses in the same manner as the original agreement was executed. The witness or witnesses to the new agreement do not need to be the same person or people who witnessed the original agreement.

It is also a good idea (but not required) that each of the parties and the witness or witnesses initial each page of the new agreement other than the page with the parties' signatures.

==For more information==

You can find more information about changing a family law agreement in the chapter [[Family Law Agreements]].

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], June 9, 2019}}

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How Do I Change a Family Law Agreement?

2019-06-10T00:38:47Z

Beatrice McCutcheon:

{{JP Boyd on Family Law How Do I TOC|expanded=agreements}}

The most common family law agreements are:
*''cohabitation agreements'', used when a couple plan on living together but don't plan on marrying,
*''marriage agreements'', used when a couple plan to marry, and
*''separation agreements'', used when married spouses or unmarried spouses have separated.

All of these agreements can be changed once they've been executed, as long as the parties to the agreement agree that the agreement should be changed.

==What can be changed==

Normally, people only want to change one or two parts of an agreement while keeping the rest of the agreement intact. If you want a brand new agreement altogether, be careful. If the other party won't agree to throw out the old agreement, they will be entitled to go to court to enforce the old agreement, whether you're still happy with that agreement or not. This is, after all, why people execute contracts in the first place: they expect them to be permanent and they expect that the courts will hold people to the agreements they have made.

==Making the new agreement==

Since, in most cases, the original agreement is being kept, changes to that agreement are made in new agreements called "amending agreements", "addendum agreements," or some other language to that effect. The new agreement is a separate contract that says in what ways the original contract is being changed. The new agreement will:

*state, in the recitals, the name and the date of the agreement that is being changed,
*briefly, also in the recitals, explain why the change is necessary, and
*state, for each change, the paragraph affected in the old agreement and how that paragraph is to be changed.

You might handle the first and second points by saying something like this: "this agreement amends the Separation Agreement executed by the parties on 1 April 2010," and "following the execution of the Separation Agreement, the schedule of the parties' parenting time has become unworkable as a result of certain changes in their hours of employment."
The individual changes might be handled like this:

<blockquote><tt>4. Paragraph 12 of the Separation Agreement will be cancelled and is replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>"Sally will return the children to Harry's care at 7:00pm or at the end of the evening shift, whichever is earlier. Sally will give Harry 24 hours notice in the event she is scheduled to work the evening shift on the days she is to return the children to Harry's care."</tt></blockquote></blockquote>
<blockquote><tt>5. Paragraph 36 of the Separation Agreement will be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>"Sally will pay child support to Harry in the amount of $425 per month for as long as the children remain children of the marriage as defined by the ''Divorce Act''."</tt></blockquote></blockquote>

The key points here are that you must specifically identify the parts that are to be changed and how they are being changed, and the new language must be as clear and unambiguous as the language of the original agreement.

==Executing the new agreement==

The new agreement must be executed in front of a witness or witnesses in the same manner as the original agreement was executed. The witness or witnesses to the new agreement do not need to be the same person or people who witnessed the original agreement.

It is also a good idea (but not required) that each of the parties and the witness or witnesses initial each page of the new agreement other than the page with the parties' signatures.

==For more information==

You can find more information about changing a family law agreement in the chapter [[Family Law Agreements]].

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], June 9, 2019}}

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How Do I Change a Family Law Agreement?

2019-06-10T00:38:07Z

Beatrice McCutcheon:

{{JP Boyd on Family Law How Do I TOC|expanded=agreements}}

The most common family law agreements are:
*''cohabitation agreements'', used when a couple plan on living together but don't plan on marrying,
*''marriage agreements'', used when a couple plan to marry, and
*''separation agreements'', used when married spouses or unmarried spouses have separated.

All of these agreements can be changed once they've been executed, as long as the parties to the agreement agree that the agreement should be changed.

==What can be changed==

Normally, people only want to change one or two parts of an agreement while keeping the rest of the agreement intact. If you want a brand new agreement altogether, be careful. If the other party won't agree to throw out the old agreement, they will be entitled to go to court to enforce the old agreement, whether you're still happy with that agreement or not. This is, after all, why people execute contracts in the first place: they expect them to be permanent and they expect that the courts will hold people to the agreements they have made.

==Making the new agreement==

Since, in most cases, the original agreement is being kept, changes to that agreement are made in new agreements called "amending agreements", "addendum agreements," or some other language to that effect. The new agreement is a separate contract that says in what ways the original contract is being changed. The new agreement will:

*state, in the recitals, the name and the date of the agreement that is being changed,
*briefly, also in the recitals, explain why the change is necessary, and
*state, for each change, the paragraph affected in the old agreement and how that paragraph is to be changed.

You might handle the first and second points by saying something like this: "this agreement amends the Separation Agreement executed by the parties on 1 April 2010," and "following the execution of the Separation Agreement, the schedule of the parties' parenting time has become unworkable as a result of certain changes in their hours of employment."
The individual changes might be handled like this:

<blockquote><tt>4. Paragraph 12 of the Separation Agreement will be cancelled and is replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>"Sally will return the children to Harry's care at 7:00pm or at the end of the evening shift, whichever is earlier. Sally will give Harry 24 hours notice in the event she is scheduled to work the evening shift on the days she is to return the children to Harry's care."</tt></blockquote></blockquote>
<blockquote><tt>5. Paragraph 36 of the Separation Agreement will be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>"Sally will pay child support to Harry in the amount of $425 per month for as long as the children remain children of the marriage as defined by the ''Divorce Act''."</tt></blockquote></blockquote>

The key points here are that you must specifically identify the parts that are to be changed and how they are being changed, and the new language must be as clear and unambiguous as the language of the original agreement.

==Executing the new agreement==

The new agreement must be executed in front of a witness or witnesses in the same manner as the original agreement was executed. The witness or witnesses to the new agreement do not need to be the same person or people who witnessed the original agreement.

It is also a good idea (but not required) that each of the parties and the witness or witnesses initial each page of the new agreement other than the page with the parties' signatures.

==For more information==

You can find more information about changing a family law agreement in the chapter [[Family Law Agreements]].

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], July 5, 2017}}

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How Do I Execute a Family Law Agreement?

2019-06-10T00:35:59Z

Beatrice McCutcheon:

{{JP Boyd on Family Law How Do I TOC|expanded=agreements}}

The most common family law agreements are:
*''cohabitation agreements'', used when a couple plan on living together but don't plan on marrying,
*''marriage agreements'', used when a couple plan to marry, and
*''separation agreements'', used when married spouses or unmarried spouses have separated.

Other agreements might include ''interim agreements'', made after negotiations have started but before a final settlement, ''parenting agreements'', ''trust agreements'', ''confidentiality agreements'' and so on.

==Execution==

All family law agreements are executed in the same way: the person making the agreement signs it in the presence of someone else, while that person watches. That's it!

==Witnesses==

The person who witnesses the signature can be anybody, with just a few exceptions. Witnesses must be 19 years of age or older, they must be sane, and they shouldn't be another party to the agreement or someone who stands to benefit from the agreement. The same person can witness both parties' signatures. ''It is not necessary to pay to have a lawyer or notary public serve as witness.''

The role of the witness is to simply say that the witness knew the person signing the agreement and saw they sign the agreement: "I saw Frank sign the agreement, and I knew it was Frank because Frank has been my neighbour for the last six years" or "I saw Ming sign the agreement, and I knew it was Ming because I saw her driver's licence and the picture matched Ming's appearance and the name on the licence matched the name on the agreement."

Signing the agreement does not make the witness a party to the agreement or put the witness under any obligation at all to either party.

==Signing the agreement==

Family law agreements are executed by having each of the parties sign their names, using their normal signatures, in a spot on the last page of the agreement that looks like this:

<blockquote><tt>SIGNED by Yitzhak    ) 
on April 20, 2013,   ) 
at Salmon Arm, BC,   ) 
in the presence of:  ) 
                     ) 
___________________  )  ___________________ 
Signature            )  YITZHAK BERNSTEIN 
___________________  ) 
Name                 ) 
___________________  ) 
Occupation           ) 
___________________  ) 
Address              ) 
___________________  )</tt></blockquote>

The party to this agreement, Yitzhak in this case, signs his normal signature above the line on the right. The witness signs above the top line on the left and fills out the extra information about the witness' address and occupation.

It is also a good idea (but not required) that each of the parties and the witnesses initial each page of the agreement other than the page with the parties' signatures.

An agreement that has been executed by both parties is called a ''perfected agreement''.

==For more information==

You can find more information about making and executing a family law agreement in the chapter [[Family Law Agreements]].

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], June 9, 2019}}

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How Do I Execute a Family Law Agreement?

2019-06-10T00:32:41Z

Beatrice McCutcheon: Clarified that one person can witness both signatures to agreement

{{JP Boyd on Family Law How Do I TOC|expanded=agreements}}

The most common family law agreements are:
*''cohabitation agreements'', used when a couple plan on living together but don't plan on marrying,
*''marriage agreements'', used when a couple plan to marry, and
*''separation agreements'', used when married spouses or unmarried spouses have separated.

Other agreements might include ''interim agreements'', made after negotiations have started but before a final settlement, ''parenting agreements'', ''trust agreements'', ''confidentiality agreements'' and so on.

==Execution==

All family law agreements are executed in the same way: the person making the agreement signs it in the presence of someone else, while that person watches. That's it!

==Witnesses==

The person who witnesses the signature can be anybody, with just a few exceptions. Witnesses must be 19 years of age or older, they must be sane, and they shouldn't be another party to the agreement or someone who stands to benefit from the agreement. The same person can witness both parties' signatures. ''It is not necessary to pay to have a lawyer or notary public serve as witness.''

The role of the witness is to simply say that the witness knew the person signing the agreement and saw they sign the agreement: "I saw Frank sign the agreement, and I knew it was Frank because Frank has been my neighbour for the last six years" or "I saw Ming sign the agreement, and I knew it was Ming because I saw her driver's licence and the picture matched Ming's appearance and the name on the licence matched the name on the agreement."

Signing the agreement does not make the witness a party to the agreement or put the witness under any obligation at all to either party.

==Signing the agreement==

Family law agreements are executed by having each of the parties sign their names, using their normal signatures, in a spot on the last page of the agreement that looks like this:

<blockquote><tt>SIGNED by Yitzhak    ) 
on April 20, 2013,   ) 
at Salmon Arm, BC,   ) 
in the presence of:  ) 
                     ) 
___________________  )  ___________________ 
Signature            )  YITZHAK BERNSTEIN 
___________________  ) 
Name                 ) 
___________________  ) 
Occupation           ) 
___________________  ) 
Address              ) 
___________________  )</tt></blockquote>

The party to this agreement, Yitzhak in this case, signs his normal signature above the line on the right. The witness signs above the top line on the left and fills out the extra information about the witness' address and occupation.

It is also a good idea (but not required) that each of the parties and the witnesses initial each page of the agreement other than the page with the parties' signatures.

An agreement that has been executed by both parties is called a ''perfected agreement''.

==For more information==

You can find more information about making and executing a family law agreement in the chapter [[Family Law Agreements]].

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], July 5, 2017}}

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Agreements after Separation

2019-06-10T00:27:51Z

Beatrice McCutcheon: /* Resources and links */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]] and [[Gagan Mann]]
}}
{{Clicklawbadge
| resourcetype = more resources dealing with 
|link = [https://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements]
}}A separation agreement is a contract that records a settlement of the issues that arise when a married or unmarried relationship ends. Unlike marriage and cohabitation agreements which are made when a relationship starts, separation agreements are made when the relationship is over.

Separation agreements can be an effective and inexpensive way of settling things. However, the terms of the agreement must be fair, and the parties must be able to get along well enough to negotiate the deal and then put it into action when it's done.

This section provides an introduction to separation agreements, discusses how separation agreements are formed, and describes the legal requirements of separation agreements. It also looks at the typical subjects of separation agreements in some detail. In addition, it discusses the effect of reconciliation on separation agreements.

==Introduction==

Every separating couple has three options to resolve the legal issues between them:

#settle the matters between them out of court through negotiation or mediation, or through some other process like arbitration or collaborative settlement processes,
#have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process, or
#give up and just walk away from the mess.

Where possible, it is almost always better to negotiate and settle a dispute than to begin a court proceeding and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process.

A couple can reach a settlement at any time, even after a court proceeding has started. Typically a settlement reached before a proceeding has begun is put into the form of a separation agreement. Settlements reached after the start of a proceeding can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a ''consent order'', an order that both parties agree the judge should make.

Separation agreements can deal with almost any issue a couple have to address, from who will keep the cats, to how the mortgage will be paid, to how the children's post-secondary education costs will be handled. They also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple.

Of course, separation agreements aren't for everyone. There must be a certain basic amount of mutual trust and good faith, and each party must have a certain flexibility and a willingness to accommodate the other side. A separation agreement will not be appropriate where a couple are so filled with anger, jealousy or stubbornness that even a basic level of mutual respect is absent and dialogue is not possible.

==Alternatives to separation agreements==

Settlement can be reached in a number of different ways before a court proceeding has started, through negotiation, mediation, a collaborative settlement process, or arbitration. Settlements reached in these ways are almost always recorded in the form of a separation agreement.

Settlements reached after a proceeding has started may be recorded as separation agreements if the terms of the settlement are complicated or if there are concerns about whether a term of the settlement can be put into a court order. In that case, the parties may enter into a separation agreement followed by a short consent order that resolves the issues raised in the court proceeding. Otherwise, a settlement of litigation will be recorded as minutes of settlement and a consent order.

====Minutes of settlement====

Minutes of settlement are a written record of the settlement of a court proceeding. They are reached after a court proceeding has begun and are usually used to describe the terms of a consent order, an order that both parties agree the court should make. Both of the lawyers and each of the parties will sign the minutes of settlement; usually only the lawyers will sign the final consent order.

Minutes of settlement sometimes have a rough-and-ready feel to them, as they are usually used to record an often hasty settlement of the legal issues, a settlement that is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less comprehensive than separation agreements. However, even though they lack the same fine-tuning and detail, minutes of settlement are just as binding upon the parties as a separation agreement would be. Both are contracts and can be enforced as such.

Minutes of settlement should:

#be signed by both lawyers and by both parties, although the signature of the parties isn't strictly necessary,
#deal with each significant issue in a final manner, and
#be attached to the draft consent order submitted to the court for its approval.

====Consent orders====

A consent order is an order that both parties agree that a judge should make. Consent orders are only appropriate if litigation has started. It is not necessary to have minutes of settlement done before a consent order is agreed to.

When a judge pronounces an order by consent, the order has just the same effect as a final order reached after a trial and is binding upon the parties as a final order.

====Minutes of settlement and consent orders====

The advantage of minutes of settlement is that the minutes can stand alone as evidence of the written agreement of the parties, while the form of a draft consent order, which may reflect the parties' agreement, still requires the court's approval. Moreover, if the terms of a draft consent order are argued about, there may not be any evidence of the agreement — as would be provided by minutes of settlement — which a court can use to decide the matter.

Consent orders have unique advantages of their own, in that it is usually extremely difficult to vary an order pronounced by consent without a serious and unanticipated change in circumstances, and such orders are almost impossible to appeal.

===Other final agreements===

Any dispute a couple has can be resolved by a formal contract of some nature. Separation agreements can be made between married spouses or unmarried spouses and deal with a large range of issues, from the care of children to the division of property and debt.

Some couples may only have one issue to resolve and the usual sort of separation agreement isn't required. People who are just parents and never married or cohabited may want a parenting agreement that talks about parental responsibilities and the allocation of parenting time. Couples, including unmarried spouses who lived together for less than two years, who only need to deal with child support and/or spousal support may want a support agreement that deals with either or both issues. Couples who only need to resolve who keeps what property and which debts may want a simple property agreement.

Family law agreements can also involve more people than the people involved in a relationship. Separated parents might sign an agreement for contact with grandparents who want to see their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money.

==Entering into a separation agreement==

A separation agreement can be negotiated and signed at any time after a married or unmarried relationship has broken down. A separation agreement can be signed after a court proceeding has been started or before one has even been considered.

===The basic process===

The process for entering into a separation agreement is fairly simple. The parties discuss the issues resulting from the breakdown of their relationship between themselves (and, hopefully, in consultation with their lawyers as well). They attempt to reach a resolution of each of the legal issues that is as satisfactory to both of them as possible. It's a good idea to take notes and record how each issue is resolved, as these notes may wind up forming the basis for any agreement that might be reached.

The settlement process is a process of negotiation: each party usually has a pretty good idea of how they would like to see things resolved, and then, following the exchange of these ideas, a compromise is reached that represents a blending of the two positions. Once settlement is reached, one of the parties will draw up a formal agreement and give it to the other party. This draft should be carefully reviewed to ensure that it accurately reflects the agreement that was reached, to check whether anything was left out, and to make sure that there are no other issues that need to be discussed and included.

Drafting a separation agreement is something that requires a great deal of skill and a solid understanding of family law and contract law. While kits are available that can guide you in drafting an agreement, I highly recommend that you hire a lawyer to deal with the matter when the content of your agreement is anything other than completely straightforward.

Once both parties are content with the text of the agreement, they must each take the agreement to their respective lawyers — or to any lawyer, for that matter — for advice on how the agreement affects their legal rights and the options they may have open to them if they don't sign the agreement. This is called getting ''independent legal advice''. This stage is critical for three reasons:

#If you are entering into an agreement that will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a court proceeding.
#You must understand the obligations and rights you have under the agreement.
#It stops either party from claiming, later on, that they didn't know what the agreement meant or that they were at a disadvantage because the other party's lawyer drafted the agreement.

After each party has had independent legal advice about the agreement, they will sign the agreement in the presence of a witness if they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement themself.

Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement."

If the parties had legal advice, the lawyer who gave the advice will usually also sign a certificate confirming that: the party received advice as to how the agreement affects their legal interests; the party understood the terms of the agreement; and, the party wasn't forced into making the agreement. This is usually called a ''Certificate of Independent Legal Advice''.

Normally, four separate original copies of a separation agreement are executed. This is so that the parties and their lawyers can each have an original copy of the agreement. Sometimes, an extra original copy is executed in case the agreement must be filed in court.

===If you are negotiating an agreement and have a lawyer===

Even if you have a lawyer it can be extremely tempting to work something out with your ex on the side. If you feel even remotely tempted to do so, call your lawyer! Make sure your lawyer knows that you're trying to explore settlement, and make sure you understand what to say and what not to say.

Nothing is quite as frustrating as finding out that a client has negotiated an inadequate or prejudicial agreement without the lawyer's input. While you, the client, are free to do as you want and can arrive at any settlement you wish, be warned that you may find yourself settling for poor terms compared to what your lawyer might have been able to negotiate for you or compared to the results you might have obtained at trial. Remember that you may be stuck with any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one.

Call your lawyer before you sign or initial anything. This is what you're paying her for.

==Formal requirements of separation agreements==

A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord, or the company from which you lease your car. On the other hand, it's a special kind of agreement, different from commercial contracts, because it deals with family law issues that are also discussed in the ''[[Family Law Act]]'' and the ''[[Divorce Act]]''. As a result, the law dealing with separation agreements is a blend of legislation, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts.

The whole point of a separation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, the agreement must be enforceable and it must be able withstand a challenge in court, that is, it must be drafted in such a way and contain terms that are reasonably fair such that a court will uphold the agreement if it is attacked.

A separation agreement must therefore conform to certain basic rules, including these:

*A separation agreement must be in writing.
*The agreement must be signed by each party, and should be signed in the presence of a witness. Although an agreement made without a witness can still be valid and binding, it is a very good idea to have a witness (or witnesses) because she (or they) can confirm that the parties signed the agreement. In addition, sections 94 and 165 of the ''[[Family Law Act]]'' provide that a court cannot make an order about division of property and debt or spousal support that has been dealt with in a written, witnessed agreement between the parties unless the court has set aside the agreement.
*Neither party should be under a legal disability at the time the agreement is signed, however children who are parents or spouses may enter into a binding agreement.
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a proper family law agreement, you might want to think about certain other principles of contract law such as these:

*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
*Both parties must make full and complete disclosure of their circumstances going into the agreement.
*The parties cannot make an illegal bargain, that is, they can't make an agreement that obliges them to do something against the law.
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may be interpreted in favour of the party who didn't have the lawyer.
*The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void.

Family law agreements are also subject to other principles that don't necessarily apply to commercial contracts:

*The parties must make full, complete and honest disclosure of their financial circumstances going into the agreement.
*If one term of a separation agreement is void then, unless the agreement says otherwise, only that term will fail and the rest of the agreement will continue as a valid agreement that is binding on the parties.
*A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement, that is, you can't say the whole agreement has been broken because the other party didn't do something they were supposed to do.
*While the parties can later agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force.

Note that the courts will rarely if ever uphold an agreement that attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward their children. The court will not consider itself bound by an agreement that says a person will never have to pay child support.

Also note that the courts can uphold an oral agreement if, as in [http://canlii.ca/t/g6t11 ''Thomson v. Young''], 2014 BCSC 799, there is evidence that both parties clearly understood the essential terms of the agreement and intended to be bound by those terms. But there is often disagreement between the parties about whether an oral agreement was intended to be final and binding, so it is best to confirm any oral agreements in a written separation agreement.

==The possible subjects of a separation agreement==

The potential subjects of a separation agreement are limited only by common sense and what the law will allow. That said, it is always best to be as realistic as possible when drafting a separation agreement. Is a schedule of payments unrealistically difficult for one party? Will the children be able to adapt to a shared parenting arrangement? Are the parties' obligations to one another too complex? Are they too optimistic? Are they affordable? While it is best that all of the issues between the parties be dealt with in a separation agreement, the simpler an agreement is, the better it will usually work in real life.

===Children===

Issues about parenting after separation are covered by the federal ''[[Divorce Act]]'' for married spouses and by the provincial ''[[Family Law Act]]'' for married spouses, unmarried spouses and other unmarried couples, and other people who have an interest in the care of a child.

The ''Divorce Act'' uses some pretty old fashioned language to talk about children, ''custody'' and ''access''. The ''Family Law Act'' talks about people who are the ''guardians'' of a child and have ''parental responsibilities'' and ''parenting time'', and people who are not guardians and have ''contact''.

====Custody and access====

There are two basic types of custody available under the ''Divorce Act'': sole custody and joint custody. Sole custody is less common than it used to be, and is usually only appropriate where the parties are constantly at each other's throats or where one party is or expects to be absent from the child's life. Joint custody is far more common than sole custody. In this situation, both parents are custodians of the children and both have responsibility for making decisions about the children.

Joint custody has little to do with how much time the child spends with each parent. The child's time can be shared equally or almost equally, or the child can see a parent only on weekends, and the parents can still have joint custody.

====Guardianship====

Under s. 39(1) of the ''[[Family Law Act]]'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardian. A parent who has never lived with their child isn't a guardian unless the parent "regularly cares" for the child.

Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way, are parents who aren't guardians to begin with — parents who have never lived with the child and have not "regularly cared" for the child.) Someone who is not a parent can't be made a guardian by an agreement.

====Parental responsibilities====

Only a guardian can have parental responsibilities for a child under the ''Family Law Act''. These responsibilities are listed at s. 41:

<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote>
<blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;</tt></blockquote>
<blockquote><tt>(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote>
<blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote>
<blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>

Guardians can share one or more of these parental responsibilities, or one or more parental responsibilities can be allocated just to one guardian, so that only that guardian has responsibility for that issue.

====Parenting time and contact====

Parenting time and contact are both about the child's parenting schedule, although parenting time is about a bit more than just the child's schedule. Only guardians have parenting time; people who aren't guardians have contact with a child.

The terms of a child's parenting schedule can be very specific or, where the parties get along exceptionally well with one another, the terms can be as vague as "Jane will have liberal and generous parenting time with the child."

If there has been a history of difficulty exercising parenting time or contact, or there is even a smidgen of conflict between the parties, it can be important to spell out the child's schedule in more detail to avoid future arguments. The terms of the child's schedule usually spell out when the party will see the child on a week-to-week basis, such as "John will have the child from Friday at the end of school to the following Sunday at 7:00pm, every other week, plus each Wednesday from the end of school until 7:00pm."

Children's schedules can also take into account:

*the child's birthday,
*Mothers' Day and Fathers' Day,
*the parties' birthdays,
*school and religious holidays,
*extended access when there is a civic holiday or a professional development day at school,
*communication by telephone and computer, including email, instant messaging and video conferencing,
*responsibility for picking up and dropping off the child,
*school events,
*the child's extracurricular activities, and
*birthdays of the child's friends.

===Child support===

Child support is a monthly sum, paid by the parent who has the child for the least amount of time, the ''payor'', to the parent who has the child for the most amount of time, to help cover the day-to-day living expenses of the child. Child support may also be paid when the parents share parenting time with the child more or less equally but there is a difference between the parents' incomes. The amount of child support that is paid is almost always dealt with by referring to the [[Child Support Guidelines]], which set out the amount of a parent's child support obligation according to the number of children support is being paid for and the payor's income.

A good separation agreement will:

#state the income of each parent at the time the agreement is made,
#state the monthly child support to be paid,
#require the parties to exchange copies of their tax returns and Canada Revenue Agency notices of assessment each year or every other year,
#provide for a review of child support if the payor's income rises or falls or if there are significant changes in the parties' parenting arrangements, and
#provide for the recalculation of the parties' shares of the cost of the child's special expenses if either party's income rises or falls.

The Guidelines are an extremely convenient way to calculate a party's child support obligations up to the point where the spouse paying support, the ''payor'', has parenting time with the child for 39% or less of the time. Once the payor has 40% or more of the child's time, the Guidelines tables become less important, and child support is assessed based on, among other things, each party's income and the amount of expenses related to the child that each party is paying. In the context of separation agreements, this allows for a little more flexibility in determining child support, but makes the annual exchange of financial information even more important.

===Spousal support===

Spousal support is paid by one spouse to the other to help cover that person's day-to-day living expenses. A separation agreement that provides for the payment of spousal support should be negotiated bearing in mind all of the things the court would have considered in making an order for spousal support.

Typically, a separation agreement that requires spousal support to be paid will include some means of limiting the length of time for which support will be payable. Such terms might include:

*a fixed length of time over which support will be paid, after which the payor will have no more responsibility to pay,
*an indefinite amount of time that support will be paid, with one or more dates set for spousal support to be reviewed,
*a series of graduated payments, so that the recipient receives a declining amount of support as they re-enter the work force,
*the termination of support if the recipient enters a new spousal relationship, or
*the payment of support in a single, lump sum.

In some situations, of course, permanent support may be required, especially if the relationship was lengthy or if the recipient is unlikely ever to become self-sufficient because of illness, for example.

Some agreements also provide that no spousal support will be payable. If you are the spouse who would ordinarily be entitled to receive support, you need to be pretty confident that the agreement to waive spousal support is fair as it may be very difficult to get support later on if your personal circumstances change.

===The division of property and debt===

The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''[[Family Law Act]]'', each spouse is presumed to keep the property they brought into the relationship and share in the property bought during the relationship. The spouses are presumed to be each half responsible for any debt incurred during the relationship. However, you can make whatever other arrangements you want, as long as you both agree to those arrangements and they're reasonably fair.

When the division of property and debt are issues, it's often helpful to exchange Financial Statements. A Financial Statement, Form F8 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules], is a helpful court form in which each party describes their income, assets, expenses and debts on oath or affirmation, like an affidavit. This form can be very useful for each spouse to get a clear idea of the family's financial situation before negotiations start. You can find links to and examples of a Financial Statement and other forms in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

A separation agreement should talk about how debts will be managed. Separating couples typically pay out family debts by the sale of a shared asset where there's not enough cash to pay it out, which is usually how the mortgage on the family home gets paid out, or they can allocate a different share of the family property to compensate for a family debt that can't be paid out. When a debt won't be paid out, it's essential to do two things: allocate responsibility for the debt; and, provide that the party remaining responsible for the debt will protect the party from having to repay the debt.

===Other issues===

Arrangements for the care of children, the payment of support, and the division of family property and family debts are the most common issues that come up in family law. There are a whole host of other issues that couples may have to deal with, including some that can only be dealt with in separation agreements.

====The parties' future relationship with each other====

Most separation agreements include a whole section devoted to describing how the parties will deal with each other once the agreement is executed. Typically, this portion of an agreement requires the parties, among other things, to:

*not incur debts in the name of the other party,
*not interfere with the personal life of the other party, including interfering with the other party's relationships with their parents, family, friends, and future partners, and,
*not molest, harass or annoy the other party.

Some separation agreements will also describe what will happen if the parties reconcile with each other. Most often an agreement will simply say that it becomes a marriage agreement or a cohabitation agreement if the parties reconcile, and that it will not cease to be in effect simply because of the reconciliation.

====Life insurance====

Where children are involved, it can be a good idea to provide that each party will maintain a life insurance policy until the children have all reached the age of majority. Each policy will name the other parent as the sole beneficiary of the policy in trust for the benefit of the children, in order to ensure that the kids will be looked after in the event that either party dies. Most agreements that deal with insurance allow the parties to change the beneficiaries of their policies once the youngest child turns 19.

In general, it's only appropriate to include a term about insurance policies if the parents can afford to pay for those policies.

====Undisclosed assets====

If you have even the slightest doubt that the other party hasn't been entirely forthcoming about the extent of their assets, a term governing undisclosed assets can be important. These sorts of terms usually provide that:

*any property that wasn't disclosed when the agreement was executed will automatically be deemed to be owned equally by both parties,
*the party that didn't disclose the asset will have to give the other party one-half of the asset's value, and,
*the party that didn't disclose the asset will have to pay the expenses the other party incurred in finding the asset, plus a financial penalty.

==The effect of reconciliation==

Separation agreements don't always contain special terms providing for the reconciliation of the parties and the resumption of their relationship. But if a couple does reconcile, what happens to their separation agreement? Does the agreement stay in force? What happens if the parties separate again?

The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resume their relationship and live as a couple. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, ''[http://canlii.ca/t/5115 Sydor v. Sydor]'', 2003 CanLII 17626 (ON CA) and by the British Columbia Supreme Court in ''[http://canlii.ca/t/g09wr Alexander v. Alexander],'' 2013 BCSC 1586. In ''Sydor v. Sydor,'' the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, notwithstanding a term of the agreement that it is a "full, final and conclusive settlement" of all issues arising from their relationship.

The upshot of all this is that if there's a chance that you and your spouse might get back together, and you want your separation agreement to survive your reconciliation, you must put a term to that effect in your separation agreement. Without it, your agreement may be worthless if you reconcile and the relationship breaks down again at some point afterwards.

==Separation agreements filed in court==

Agreements that are filed in court can be enforced as if they were orders of the court in which they are filed. Among other things, this means that the Family Maintenance Enforcement Program can enforce an agreement for support exactly as it would enforce an order for support.

To find out how to file an agreement, or to see if your agreement has been filed in court, read [[How Do I File an Agreement in Court?]] It's located in the ''How Do I?'' part of this resource under ''Separation Agreements''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Links===

* [https://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/agreements/making-agreement-after-you-separate Legal Services Society's Family Law Website: Making an agreement after separation]
* [https://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/agreements/making-agreement-when-you-live-together Legal Services Society's Family Law Website: Who can help you reach an agreement?]
* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2, Making Agreements]
*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]
* [http://www.lawsociety.bc.ca/docs/practice/checklists/D-3.pdf Law Society of BC: Separation agreement drafting checklist]

{{REVIEWED | reviewer = [[Gagan Mann]] and [[Beatrice McCutcheon]], June 3, 2019}}

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[[Category:Family Law Agreements]]
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[[Category:JP Boyd on Family Law]]

Agreements after Separation

2019-06-10T00:27:19Z

Beatrice McCutcheon: Add paragraph about oral agreements

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]] and [[Gagan Mann]]
}}
{{Clicklawbadge
| resourcetype = more resources dealing with 
|link = [https://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements]
}}A separation agreement is a contract that records a settlement of the issues that arise when a married or unmarried relationship ends. Unlike marriage and cohabitation agreements which are made when a relationship starts, separation agreements are made when the relationship is over.

Separation agreements can be an effective and inexpensive way of settling things. However, the terms of the agreement must be fair, and the parties must be able to get along well enough to negotiate the deal and then put it into action when it's done.

This section provides an introduction to separation agreements, discusses how separation agreements are formed, and describes the legal requirements of separation agreements. It also looks at the typical subjects of separation agreements in some detail. In addition, it discusses the effect of reconciliation on separation agreements.

==Introduction==

Every separating couple has three options to resolve the legal issues between them:

#settle the matters between them out of court through negotiation or mediation, or through some other process like arbitration or collaborative settlement processes,
#have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process, or
#give up and just walk away from the mess.

Where possible, it is almost always better to negotiate and settle a dispute than to begin a court proceeding and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process.

A couple can reach a settlement at any time, even after a court proceeding has started. Typically a settlement reached before a proceeding has begun is put into the form of a separation agreement. Settlements reached after the start of a proceeding can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a ''consent order'', an order that both parties agree the judge should make.

Separation agreements can deal with almost any issue a couple have to address, from who will keep the cats, to how the mortgage will be paid, to how the children's post-secondary education costs will be handled. They also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple.

Of course, separation agreements aren't for everyone. There must be a certain basic amount of mutual trust and good faith, and each party must have a certain flexibility and a willingness to accommodate the other side. A separation agreement will not be appropriate where a couple are so filled with anger, jealousy or stubbornness that even a basic level of mutual respect is absent and dialogue is not possible.

==Alternatives to separation agreements==

Settlement can be reached in a number of different ways before a court proceeding has started, through negotiation, mediation, a collaborative settlement process, or arbitration. Settlements reached in these ways are almost always recorded in the form of a separation agreement.

Settlements reached after a proceeding has started may be recorded as separation agreements if the terms of the settlement are complicated or if there are concerns about whether a term of the settlement can be put into a court order. In that case, the parties may enter into a separation agreement followed by a short consent order that resolves the issues raised in the court proceeding. Otherwise, a settlement of litigation will be recorded as minutes of settlement and a consent order.

====Minutes of settlement====

Minutes of settlement are a written record of the settlement of a court proceeding. They are reached after a court proceeding has begun and are usually used to describe the terms of a consent order, an order that both parties agree the court should make. Both of the lawyers and each of the parties will sign the minutes of settlement; usually only the lawyers will sign the final consent order.

Minutes of settlement sometimes have a rough-and-ready feel to them, as they are usually used to record an often hasty settlement of the legal issues, a settlement that is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less comprehensive than separation agreements. However, even though they lack the same fine-tuning and detail, minutes of settlement are just as binding upon the parties as a separation agreement would be. Both are contracts and can be enforced as such.

Minutes of settlement should:

#be signed by both lawyers and by both parties, although the signature of the parties isn't strictly necessary,
#deal with each significant issue in a final manner, and
#be attached to the draft consent order submitted to the court for its approval.

====Consent orders====

A consent order is an order that both parties agree that a judge should make. Consent orders are only appropriate if litigation has started. It is not necessary to have minutes of settlement done before a consent order is agreed to.

When a judge pronounces an order by consent, the order has just the same effect as a final order reached after a trial and is binding upon the parties as a final order.

====Minutes of settlement and consent orders====

The advantage of minutes of settlement is that the minutes can stand alone as evidence of the written agreement of the parties, while the form of a draft consent order, which may reflect the parties' agreement, still requires the court's approval. Moreover, if the terms of a draft consent order are argued about, there may not be any evidence of the agreement — as would be provided by minutes of settlement — which a court can use to decide the matter.

Consent orders have unique advantages of their own, in that it is usually extremely difficult to vary an order pronounced by consent without a serious and unanticipated change in circumstances, and such orders are almost impossible to appeal.

===Other final agreements===

Any dispute a couple has can be resolved by a formal contract of some nature. Separation agreements can be made between married spouses or unmarried spouses and deal with a large range of issues, from the care of children to the division of property and debt.

Some couples may only have one issue to resolve and the usual sort of separation agreement isn't required. People who are just parents and never married or cohabited may want a parenting agreement that talks about parental responsibilities and the allocation of parenting time. Couples, including unmarried spouses who lived together for less than two years, who only need to deal with child support and/or spousal support may want a support agreement that deals with either or both issues. Couples who only need to resolve who keeps what property and which debts may want a simple property agreement.

Family law agreements can also involve more people than the people involved in a relationship. Separated parents might sign an agreement for contact with grandparents who want to see their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money.

==Entering into a separation agreement==

A separation agreement can be negotiated and signed at any time after a married or unmarried relationship has broken down. A separation agreement can be signed after a court proceeding has been started or before one has even been considered.

===The basic process===

The process for entering into a separation agreement is fairly simple. The parties discuss the issues resulting from the breakdown of their relationship between themselves (and, hopefully, in consultation with their lawyers as well). They attempt to reach a resolution of each of the legal issues that is as satisfactory to both of them as possible. It's a good idea to take notes and record how each issue is resolved, as these notes may wind up forming the basis for any agreement that might be reached.

The settlement process is a process of negotiation: each party usually has a pretty good idea of how they would like to see things resolved, and then, following the exchange of these ideas, a compromise is reached that represents a blending of the two positions. Once settlement is reached, one of the parties will draw up a formal agreement and give it to the other party. This draft should be carefully reviewed to ensure that it accurately reflects the agreement that was reached, to check whether anything was left out, and to make sure that there are no other issues that need to be discussed and included.

Drafting a separation agreement is something that requires a great deal of skill and a solid understanding of family law and contract law. While kits are available that can guide you in drafting an agreement, I highly recommend that you hire a lawyer to deal with the matter when the content of your agreement is anything other than completely straightforward.

Once both parties are content with the text of the agreement, they must each take the agreement to their respective lawyers — or to any lawyer, for that matter — for advice on how the agreement affects their legal rights and the options they may have open to them if they don't sign the agreement. This is called getting ''independent legal advice''. This stage is critical for three reasons:

#If you are entering into an agreement that will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a court proceeding.
#You must understand the obligations and rights you have under the agreement.
#It stops either party from claiming, later on, that they didn't know what the agreement meant or that they were at a disadvantage because the other party's lawyer drafted the agreement.

After each party has had independent legal advice about the agreement, they will sign the agreement in the presence of a witness if they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement themself.

Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement."

If the parties had legal advice, the lawyer who gave the advice will usually also sign a certificate confirming that: the party received advice as to how the agreement affects their legal interests; the party understood the terms of the agreement; and, the party wasn't forced into making the agreement. This is usually called a ''Certificate of Independent Legal Advice''.

Normally, four separate original copies of a separation agreement are executed. This is so that the parties and their lawyers can each have an original copy of the agreement. Sometimes, an extra original copy is executed in case the agreement must be filed in court.

===If you are negotiating an agreement and have a lawyer===

Even if you have a lawyer it can be extremely tempting to work something out with your ex on the side. If you feel even remotely tempted to do so, call your lawyer! Make sure your lawyer knows that you're trying to explore settlement, and make sure you understand what to say and what not to say.

Nothing is quite as frustrating as finding out that a client has negotiated an inadequate or prejudicial agreement without the lawyer's input. While you, the client, are free to do as you want and can arrive at any settlement you wish, be warned that you may find yourself settling for poor terms compared to what your lawyer might have been able to negotiate for you or compared to the results you might have obtained at trial. Remember that you may be stuck with any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one.

Call your lawyer before you sign or initial anything. This is what you're paying her for.

==Formal requirements of separation agreements==

A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord, or the company from which you lease your car. On the other hand, it's a special kind of agreement, different from commercial contracts, because it deals with family law issues that are also discussed in the ''[[Family Law Act]]'' and the ''[[Divorce Act]]''. As a result, the law dealing with separation agreements is a blend of legislation, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts.

The whole point of a separation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, the agreement must be enforceable and it must be able withstand a challenge in court, that is, it must be drafted in such a way and contain terms that are reasonably fair such that a court will uphold the agreement if it is attacked.

A separation agreement must therefore conform to certain basic rules, including these:

*A separation agreement must be in writing.
*The agreement must be signed by each party, and should be signed in the presence of a witness. Although an agreement made without a witness can still be valid and binding, it is a very good idea to have a witness (or witnesses) because she (or they) can confirm that the parties signed the agreement. In addition, sections 94 and 165 of the ''[[Family Law Act]]'' provide that a court cannot make an order about division of property and debt or spousal support that has been dealt with in a written, witnessed agreement between the parties unless the court has set aside the agreement.
*Neither party should be under a legal disability at the time the agreement is signed, however children who are parents or spouses may enter into a binding agreement.
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a proper family law agreement, you might want to think about certain other principles of contract law such as these:

*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
*Both parties must make full and complete disclosure of their circumstances going into the agreement.
*The parties cannot make an illegal bargain, that is, they can't make an agreement that obliges them to do something against the law.
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may be interpreted in favour of the party who didn't have the lawyer.
*The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void.

Family law agreements are also subject to other principles that don't necessarily apply to commercial contracts:

*The parties must make full, complete and honest disclosure of their financial circumstances going into the agreement.
*If one term of a separation agreement is void then, unless the agreement says otherwise, only that term will fail and the rest of the agreement will continue as a valid agreement that is binding on the parties.
*A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement, that is, you can't say the whole agreement has been broken because the other party didn't do something they were supposed to do.
*While the parties can later agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force.

Note that the courts will rarely if ever uphold an agreement that attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward their children. The court will not consider itself bound by an agreement that says a person will never have to pay child support.

Also note that the courts can uphold an oral agreement if, as in [http://canlii.ca/t/g6t11 ''Thomson v. Young''], 2014 BCSC 799, there is evidence that both parties clearly understood the essential terms of the agreement and intended to be bound by those terms. But there is often disagreement between the parties about whether an oral agreement was intended to be final and binding, so it is best to confirm any oral agreements in a written separation agreement.

==The possible subjects of a separation agreement==

The potential subjects of a separation agreement are limited only by common sense and what the law will allow. That said, it is always best to be as realistic as possible when drafting a separation agreement. Is a schedule of payments unrealistically difficult for one party? Will the children be able to adapt to a shared parenting arrangement? Are the parties' obligations to one another too complex? Are they too optimistic? Are they affordable? While it is best that all of the issues between the parties be dealt with in a separation agreement, the simpler an agreement is, the better it will usually work in real life.

===Children===

Issues about parenting after separation are covered by the federal ''[[Divorce Act]]'' for married spouses and by the provincial ''[[Family Law Act]]'' for married spouses, unmarried spouses and other unmarried couples, and other people who have an interest in the care of a child.

The ''Divorce Act'' uses some pretty old fashioned language to talk about children, ''custody'' and ''access''. The ''Family Law Act'' talks about people who are the ''guardians'' of a child and have ''parental responsibilities'' and ''parenting time'', and people who are not guardians and have ''contact''.

====Custody and access====

There are two basic types of custody available under the ''Divorce Act'': sole custody and joint custody. Sole custody is less common than it used to be, and is usually only appropriate where the parties are constantly at each other's throats or where one party is or expects to be absent from the child's life. Joint custody is far more common than sole custody. In this situation, both parents are custodians of the children and both have responsibility for making decisions about the children.

Joint custody has little to do with how much time the child spends with each parent. The child's time can be shared equally or almost equally, or the child can see a parent only on weekends, and the parents can still have joint custody.

====Guardianship====

Under s. 39(1) of the ''[[Family Law Act]]'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardian. A parent who has never lived with their child isn't a guardian unless the parent "regularly cares" for the child.

Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way, are parents who aren't guardians to begin with — parents who have never lived with the child and have not "regularly cared" for the child.) Someone who is not a parent can't be made a guardian by an agreement.

====Parental responsibilities====

Only a guardian can have parental responsibilities for a child under the ''Family Law Act''. These responsibilities are listed at s. 41:

<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote>
<blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;</tt></blockquote>
<blockquote><tt>(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote>
<blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote>
<blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>

Guardians can share one or more of these parental responsibilities, or one or more parental responsibilities can be allocated just to one guardian, so that only that guardian has responsibility for that issue.

====Parenting time and contact====

Parenting time and contact are both about the child's parenting schedule, although parenting time is about a bit more than just the child's schedule. Only guardians have parenting time; people who aren't guardians have contact with a child.

The terms of a child's parenting schedule can be very specific or, where the parties get along exceptionally well with one another, the terms can be as vague as "Jane will have liberal and generous parenting time with the child."

If there has been a history of difficulty exercising parenting time or contact, or there is even a smidgen of conflict between the parties, it can be important to spell out the child's schedule in more detail to avoid future arguments. The terms of the child's schedule usually spell out when the party will see the child on a week-to-week basis, such as "John will have the child from Friday at the end of school to the following Sunday at 7:00pm, every other week, plus each Wednesday from the end of school until 7:00pm."

Children's schedules can also take into account:

*the child's birthday,
*Mothers' Day and Fathers' Day,
*the parties' birthdays,
*school and religious holidays,
*extended access when there is a civic holiday or a professional development day at school,
*communication by telephone and computer, including email, instant messaging and video conferencing,
*responsibility for picking up and dropping off the child,
*school events,
*the child's extracurricular activities, and
*birthdays of the child's friends.

===Child support===

Child support is a monthly sum, paid by the parent who has the child for the least amount of time, the ''payor'', to the parent who has the child for the most amount of time, to help cover the day-to-day living expenses of the child. Child support may also be paid when the parents share parenting time with the child more or less equally but there is a difference between the parents' incomes. The amount of child support that is paid is almost always dealt with by referring to the [[Child Support Guidelines]], which set out the amount of a parent's child support obligation according to the number of children support is being paid for and the payor's income.

A good separation agreement will:

#state the income of each parent at the time the agreement is made,
#state the monthly child support to be paid,
#require the parties to exchange copies of their tax returns and Canada Revenue Agency notices of assessment each year or every other year,
#provide for a review of child support if the payor's income rises or falls or if there are significant changes in the parties' parenting arrangements, and
#provide for the recalculation of the parties' shares of the cost of the child's special expenses if either party's income rises or falls.

The Guidelines are an extremely convenient way to calculate a party's child support obligations up to the point where the spouse paying support, the ''payor'', has parenting time with the child for 39% or less of the time. Once the payor has 40% or more of the child's time, the Guidelines tables become less important, and child support is assessed based on, among other things, each party's income and the amount of expenses related to the child that each party is paying. In the context of separation agreements, this allows for a little more flexibility in determining child support, but makes the annual exchange of financial information even more important.

===Spousal support===

Spousal support is paid by one spouse to the other to help cover that person's day-to-day living expenses. A separation agreement that provides for the payment of spousal support should be negotiated bearing in mind all of the things the court would have considered in making an order for spousal support.

Typically, a separation agreement that requires spousal support to be paid will include some means of limiting the length of time for which support will be payable. Such terms might include:

*a fixed length of time over which support will be paid, after which the payor will have no more responsibility to pay,
*an indefinite amount of time that support will be paid, with one or more dates set for spousal support to be reviewed,
*a series of graduated payments, so that the recipient receives a declining amount of support as they re-enter the work force,
*the termination of support if the recipient enters a new spousal relationship, or
*the payment of support in a single, lump sum.

In some situations, of course, permanent support may be required, especially if the relationship was lengthy or if the recipient is unlikely ever to become self-sufficient because of illness, for example.

Some agreements also provide that no spousal support will be payable. If you are the spouse who would ordinarily be entitled to receive support, you need to be pretty confident that the agreement to waive spousal support is fair as it may be very difficult to get support later on if your personal circumstances change.

===The division of property and debt===

The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''[[Family Law Act]]'', each spouse is presumed to keep the property they brought into the relationship and share in the property bought during the relationship. The spouses are presumed to be each half responsible for any debt incurred during the relationship. However, you can make whatever other arrangements you want, as long as you both agree to those arrangements and they're reasonably fair.

When the division of property and debt are issues, it's often helpful to exchange Financial Statements. A Financial Statement, Form F8 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules], is a helpful court form in which each party describes their income, assets, expenses and debts on oath or affirmation, like an affidavit. This form can be very useful for each spouse to get a clear idea of the family's financial situation before negotiations start. You can find links to and examples of a Financial Statement and other forms in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

A separation agreement should talk about how debts will be managed. Separating couples typically pay out family debts by the sale of a shared asset where there's not enough cash to pay it out, which is usually how the mortgage on the family home gets paid out, or they can allocate a different share of the family property to compensate for a family debt that can't be paid out. When a debt won't be paid out, it's essential to do two things: allocate responsibility for the debt; and, provide that the party remaining responsible for the debt will protect the party from having to repay the debt.

===Other issues===

Arrangements for the care of children, the payment of support, and the division of family property and family debts are the most common issues that come up in family law. There are a whole host of other issues that couples may have to deal with, including some that can only be dealt with in separation agreements.

====The parties' future relationship with each other====

Most separation agreements include a whole section devoted to describing how the parties will deal with each other once the agreement is executed. Typically, this portion of an agreement requires the parties, among other things, to:

*not incur debts in the name of the other party,
*not interfere with the personal life of the other party, including interfering with the other party's relationships with their parents, family, friends, and future partners, and,
*not molest, harass or annoy the other party.

Some separation agreements will also describe what will happen if the parties reconcile with each other. Most often an agreement will simply say that it becomes a marriage agreement or a cohabitation agreement if the parties reconcile, and that it will not cease to be in effect simply because of the reconciliation.

====Life insurance====

Where children are involved, it can be a good idea to provide that each party will maintain a life insurance policy until the children have all reached the age of majority. Each policy will name the other parent as the sole beneficiary of the policy in trust for the benefit of the children, in order to ensure that the kids will be looked after in the event that either party dies. Most agreements that deal with insurance allow the parties to change the beneficiaries of their policies once the youngest child turns 19.

In general, it's only appropriate to include a term about insurance policies if the parents can afford to pay for those policies.

====Undisclosed assets====

If you have even the slightest doubt that the other party hasn't been entirely forthcoming about the extent of their assets, a term governing undisclosed assets can be important. These sorts of terms usually provide that:

*any property that wasn't disclosed when the agreement was executed will automatically be deemed to be owned equally by both parties,
*the party that didn't disclose the asset will have to give the other party one-half of the asset's value, and,
*the party that didn't disclose the asset will have to pay the expenses the other party incurred in finding the asset, plus a financial penalty.

==The effect of reconciliation==

Separation agreements don't always contain special terms providing for the reconciliation of the parties and the resumption of their relationship. But if a couple does reconcile, what happens to their separation agreement? Does the agreement stay in force? What happens if the parties separate again?

The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resume their relationship and live as a couple. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, ''[http://canlii.ca/t/5115 Sydor v. Sydor]'', 2003 CanLII 17626 (ON CA) and by the British Columbia Supreme Court in ''[http://canlii.ca/t/g09wr Alexander v. Alexander],'' 2013 BCSC 1586. In ''Sydor v. Sydor,'' the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, notwithstanding a term of the agreement that it is a "full, final and conclusive settlement" of all issues arising from their relationship.

The upshot of all this is that if there's a chance that you and your spouse might get back together, and you want your separation agreement to survive your reconciliation, you must put a term to that effect in your separation agreement. Without it, your agreement may be worthless if you reconcile and the relationship breaks down again at some point afterwards.

==Separation agreements filed in court==

Agreements that are filed in court can be enforced as if they were orders of the court in which they are filed. Among other things, this means that the Family Maintenance Enforcement Program can enforce an agreement for support exactly as it would enforce an order for support.

To find out how to file an agreement, or to see if your agreement has been filed in court, read [[How Do I File an Agreement in Court?]] It's located in the ''How Do I?'' part of this resource under ''Separation Agreements''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Links===

* [https://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/agreements/making-agreement-after-you-separate Legal Services Society's Family Law Website: Making an agreement after separation]
* [https://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/agreements/making-agreement-when-you-live-together Legal Services Society's Family Law Website: Who can help you reach an agreement?]
* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2, Making Agreements]
*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]
* [http://www.lawsociety.bc.ca/docs/practice/checklists/D-3.pdf Law Society of BC: Separation agreement drafting checklist]

{{REVIEWED | reviewer = [[Gagan Mann]], June 3, 2019}}

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[[Category:Family Law Agreements]]
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[[Category:JP Boyd on Family Law]]

Changing Family Law Agreements

2019-06-09T23:56:59Z

Beatrice McCutcheon: Update section to reflect changes in case law

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]] and [[Gagan Mann]]
}}
{{Clicklawbadge
| resourcetype = a links to more resources on 
| link = [http:s//www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by each party in the presence of a witness, who watches the party sign the agreement and then signs the agreement themself. The same person can be the witness for both parties.

===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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse may be able to challenge the validity of an agreement where they 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 material 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 amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Section 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>

In a 2013 case from the Supreme Court of British Columbia, [http://canlii.ca/t/fxsd1 ''L.G. v. R.G.''], 2013 BCSC 983, 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 case, [http://canlii.ca/t/g8mqv ''Remmem v. Remmem''], 2014 BCSC 1552, 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 legislation.

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

Agreements between married spouses 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 ''[http://www.bclaws.ca/civix/document/id/consol21/consol21/00_96128_01 Family Relations Act]'', which was the law in effect before the ''Family Law 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''.

If the ''Family Relations Act'' applies, then section 65 of that act says that an agreement that is in writing and witnessed by a third 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.

For agreements between unmarried spouses made before March 18, 2013, the Supreme Court of British Columbia has found in [http://canlii.ca/t/j0s71 ''B.L.S. v. D.J.S''], 2019 BCSC 846, that the ''Family Law Act'' applies to these agreements, subject to any time limitations under s. 198 of the act.

Given the additional issues involved in changing agreements made before March 18, 2013, getting advice from a lawyer is highly recommended.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.westcoastleaf.org/our-publications/separation-agreements-your-rights-and-options-2019-edition/ West Coast LEAF: Separation Agreements: Your Rights and Options]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], June 9, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Family Law Agreements]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Changing Family Law Agreements

2019-06-09T23:51:01Z

Beatrice McCutcheon:

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]] and [[Gagan Mann]]
}}
{{Clicklawbadge
| resourcetype = a links to more resources on 
| link = [http:s//www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by each party in the presence of a witness, who watches the party sign the agreement and then signs the agreement themself. The same person can be the witness for both parties.

===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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse may be able to challenge the validity of an agreement where they 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 material 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 amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Section 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>

In a 2013 case from the Supreme Court of British Columbia, [http://canlii.ca/t/fxsd1 ''L.G. v. R.G.''], 2013 BCSC 983, 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 case, [http://canlii.ca/t/g8mqv ''Remmem v. Remmem''], 2014 BCSC 1552, 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 legislation.

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

Agreements between married spouses 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 ''[http://www.bclaws.ca/civix/document/id/consol21/consol21/00_96128_01 Family Relations Act]'', which was the law in effect before the ''Family Law Act''. For agreements between unmarried spouses made before March 18, 2013,, the Supreme Court of British Columbia has found in B.L.S. v. D.J.S that the ''Family Law Act'' applies subject to any time limitations under s. 198 of the 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''. If the ''Family Relations Act'' applies, then section 65 of that act says that an agreement that is in writing and witnessed by a third 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 lawyer is highly recommended.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.westcoastleaf.org/our-publications/separation-agreements-your-rights-and-options-2019-edition/ West Coast LEAF: Separation Agreements: Your Rights and Options]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], June 9, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Family Law Agreements]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Changing Family Law Agreements

2019-06-09T23:38:49Z

Beatrice McCutcheon: Update link to 2019 edition of booklet

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]] and [[Gagan Mann]]
}}
{{Clicklawbadge
| resourcetype = a links to more resources on 
| link = [http:s//www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by each party in the presence of a witness, who watches the party sign the agreement and then signs the agreement themself. The same person can be the witness for both parties.

===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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse may be able to challenge the validity of an agreement where they 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 material 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 amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Section 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>

In a 2013 case from the Supreme Court of British Columbia, [http://canlii.ca/t/fxsd1 ''L.G. v. R.G.''], 2013 BCSC 983, 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 case, [http://canlii.ca/t/g8mqv ''Remmem v. Remmem''], 2014 BCSC 1552, 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 legislation.

===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 ''[http://www.bclaws.ca/civix/document/id/consol21/consol21/00_96128_01 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 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 lawyer is highly recommended.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.westcoastleaf.org/our-publications/separation-agreements-your-rights-and-options-2019-edition/ West Coast LEAF: Separation Agreements: Your Rights and Options]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], June 9, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Family Law Agreements]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Changing Family Law Agreements

2019-06-09T23:16:41Z

Beatrice McCutcheon: Revised to clarify that agreement can be witnessed by one or two people

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]] and [[Gagan Mann]]
}}
{{Clicklawbadge
| resourcetype = a links to more resources on 
| link = [http:s//www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by each party in the presence of a witness, who watches the party sign the agreement and then signs the agreement themself. The same person can be the witness for both parties.

===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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse may be able to challenge the validity of an agreement where they 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 material 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 amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Section 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>

In a 2013 case from the Supreme Court of British Columbia, [http://canlii.ca/t/fxsd1 ''L.G. v. R.G.''], 2013 BCSC 983, 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 case, [http://canlii.ca/t/g8mqv ''Remmem v. Remmem''], 2014 BCSC 1552, 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 legislation.

===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 ''[http://www.bclaws.ca/civix/document/id/consol21/consol21/00_96128_01 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 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 lawyer is highly recommended.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], February 22, 2017}}

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Enforcing Family Law Agreements

2019-06-09T23:03:34Z

Beatrice McCutcheon: Update links

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]] and [[Gagan Mann]]
}}

People who sign a family law agreement are signing a ''contract''. A contract is an agreement between two or more people that creates an obligation to do or to not do something. Other kinds of contracts include the rental agreement a tenant has with a landlord, the lease agreement you might have with a car company, or the employment contract an employee has with an employer. Contracts can be enforced by the courts when someone doesn't do what the contract requires of them; in fact, that's the whole point of having a contract. You want a document that describes your obligations to each other and you want to have a way of making the other party do what they're supposed to do.

This section discusses how family law agreements can be enforced by the courts and by the [[Family Maintenance Enforcement Program]], an agency of the provincial government that can help with the enforcement of agreements for the payment of child support and spousal support.

==Introduction==

When someone who has signed a family law agreement doesn't do the things the agreement requires, that person is ''in breach'' of the agreement. In family law, unlike in the law about commercial contracts, a party to an agreement can breach just part of the agreement without being considered to be in breach of the whole agreement. As a result, when someone breaches just a part of a family law agreement, the other party isn't allowed to treat the entire agreement as having been rejected by the breaching party, no matter how important the breach was, and the agreement continues to be binding on both parties.

The ''[[Family Law Act]]'' says this about family law agreements at s. 6:

<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
<blockquote><blockquote><tt>(a) to resolve a family law dispute, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) respecting</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a matter that may be the subject of a family law dispute in the future,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the implementation of an agreement or order.</tt></blockquote></blockquote></blockquote>
<blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote>
<blockquote><tt>(4) Subsection (3) applies whether or not</tt></blockquote>
<blockquote><blockquote><tt>(a) there is consideration,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the agreement has been made with the involvement of a family dispute resolution professional, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the agreement is filed with a court.</tt></blockquote></blockquote>

When a term of an agreement is breached, the other party is entitled to take steps to make the breaching party comply with their obligations under the agreement. This is called ''enforcing'' the agreement. How a separation agreement is enforced depends largely on which particular term of the agreement has been breached. Some terms, like those dealing with child support, are fairly easy to enforce. Other terms, like those dealing with the allocation of parental responsibilities, can be much harder to deal with.

===Enforcement under the ''Family Law Act''===

The ''[[Family Law Act]]'' allows certain family law agreements about certain subjects to be filed in court and enforced under the act:

*agreements on ''parental responsibilities and parenting time'' can be filed under s. 44(3),
*agreements for ''contact'' can be filed under s. 58(3),
*agreements for ''child support'' can be filed under s. 148(2), and
*agreements for ''spousal support'' can be filed under s. 163(3).

Once filed in court, these agreements can be enforced under the ''Family Law Act'' in the same way as orders are enforced under the act.

The act has different ways of enforcing orders that change depending on the subject of the order (or agreement). Where the act provides a way particular way of enforcing an order, the order can be enforced under that ''specific'' enforcement power and by the act's ''extraordinary'' enforcement power. Where the act does not provide a particular way of enforcing an order, the order can be enforced under the act's ''general'' enforcement power and by its ''extraordinary'' enforcement power.

====General enforcement power====

Under s. 230 of the ''[[Family Law Act]]'', the court can enforce an order (or agreement) by requiring a person:

*to post security, usually by paying a sum of money into court,
*to pay the expenses of the other party incurred from the person's breach,
*to pay up to $5,000 to the other party or a child or spouse who was affected by the person's breach, or
*to pay up to $5,000 as a fine.

These provisions apply to agreements about parental responsibilities, child support, and spousal support.

====Extraordinary enforcement power====

Under s. 231 of the act, when no other order will be sufficient to make someone comply with an order (or agreement), the court can enforce the order (or agreement) by imprisoning the breaching party for up to 30 days.

This provision applies to agreements about parental responsibilities, parenting time, contact, child support, and spousal support.

===Enforcement under other legislation===

The federal ''[[Divorce Act]]'' does not address the enforcement of family law agreements, however other laws do, such as the provincial ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the provincial ''[http://canlii.ca/t/8495 Personal Property Security Act]''.

====Orders about child support and spousal support====

Under ss. 148 and 163 of the ''Family Law Act'', an agreement about child support or spousal support that has been filed in court can also be enforced under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

Agreements about child support or spousal support made outside of British Columbia can be filed in court under the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'', and then be enforced under the ''Family Maintenance Enforcement Act''.

====Orders about property====

Under s. 99 of the ''[[Family Law Act]]'', a party to a family law agreement about property can file a Notice of Agreement in the Land Title Office that will be registered as a charge on the title of a property under the ''[http://canlii.ca/t/8456 Land Title Act].'' This will stop the property from being transferred or mortgaged until the Notice of Agreement is cancelled.

Under s. 100 of the act, a party to a family law agreement about a manufactured home can file a Financing Statement in the [http://www.bcregistryservices.gov.bc.ca/bcreg/pprpg/ppinfo.page Personal Property Registry] that will be registered against the manufactured home under the ''[http://canlii.ca/t/8495 Personal Property Security Act]''. This will stop the manufactured home from being transferred until the Financing Statement is cancelled.

==Agreements about the care of children==

Under the federal ''[[Divorce Act]]'', married spouses have ''custody'' of their children, and the schedule of their time with the children is called ''access''. Married spouses could make an agreement talking about the care of their children in terms of custody and access, but should probably use the language used by the provincial ''[[Family Law Act]]'' because only that act provides specifically for the enforcement of agreements.

Under the ''Family Law Act'', guardians, who may or may not be parents, have ''parental responsibilities'' for raising the children, and the schedule of their time with the children is ''parenting time''. People who are not guardians may have ''contact'' with a child.

===Parental responsibilities===

An agreement about parental responsibilities can be filed in court under s. 44(3) of the ''Family Law Act'' and be enforced through the act's general and extraordinary enforcement powers.

===Parenting time and contact===

A written agreement about parenting time can be filed in court under s. 44(3); a written agreement about contact with a child can be filed in court under s. 58(3). These agreements can be enforced through the specific enforcement powers found in ss. 61 and 63 as well as the act's extraordinary enforcement powers.

====Denial of parenting time or contact====

Under s. 61 where someone has been ''wrongfully denied'' parenting time or contact in the previous 12 months, the court can:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

The court can enforce agreements for parenting time or contact using its extraordinary power to jail someone, as well as certain other extraordinary powers intended for problems like these. Under s. 231(4), where a guardian withholds parenting time or contact, the court can require a police officer to take the child to the person entitled to parenting time or contact. Under s. 231(5), where a person with contact refuses to return the child to their guardian, the court can require a police officer to take the child to their guardian.

Under s. 62(2), the denial of parenting time or contact is not wrongful if:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

====Failure to exercise parenting time or contact====

Under s. 63 where someone "fails repeatedly" to exercise a right of parenting time or contact under an agreement, the court can:

*require the parties to attend a course of dispute resolution,
*require one or more parties or the child to attend counselling,
*require the transfer of the child between the parties to be supervised,
*require the reimbursement of expenses incurred as a result of the failure,
*require the posting of security, or
*require the breaching person to report to the court.

The court can enforce these agreements using its extraordinary power to jail a person.

==Agreements for child support and spousal support==

When a payor falls behind in their support payments as required by an agreement, or stops making them altogether, they are said to be in ''arrears'' of support. Support is often the easiest part of an agreement to enforce.

Once an agreement is filed in court, under s. 148 of the ''[[Family Law Act]]'' for child support and s. 163 for spousal support, the agreement can be enforced through the act's general and extraordinary enforcement powers. Filed agreements can also be enforced by the provincial [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program]. This is a free service that can be very effective in forcing a payor to meet their obligations and monitor ongoing payments.

==Agreements about property and debt==

Where an agreement provides for the division of property and debt and someone doesn't live up to their obligations, the agreement can be enforced by starting a court proceeding in the Supreme Court for ''breach of contract'', asking the court to make an order for the ''specific performance'' of the agreement by the person in breach, plus an order for costs. An order for the specific performance of an agreement requires the breaching person to do whatever it is that the agreement required of them, like transferring real property, surrendering personal property, or paying a debt. An order for costs requires the breaching person to pay some money toward the cost of the court proceeding.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/8456 Land Title Act]''
* ''[http://canlii.ca/t/8495 Personal Property Security Act]''

===Links===

* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: About support enforcement]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/enforce-execut.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://familylaw.lss.bc.ca/finances-support/child-spousal-support/family-maintenance-enforcement-program Legal Services Society’s Family Law Website: Family Maintenance Enforcement Program]
* [http://www.bcregistryservices.gov.bc.ca/bcreg/pprpg/ppinfo.page Personal Property Registry website]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], June 9, 2019}}

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Changing Family Law Agreements

2017-07-24T17:43:59Z

Beatrice McCutcheon: /* Setting aside agreements under the Family Relations Act */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = a links to more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by both parties in the presence of a witness, 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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse 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 material 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 amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Section 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>

In 2013 case from the Supreme Court of British Columbia, [https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc983/2013bcsc983.html?resultIndex=1 ''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 case, [https://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1552/2014bcsc1552.html?resultIndex=1 ''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 legislation.

===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 ''[http://www.bclaws.ca/civix/document/id/consol21/consol21/00_96128_01 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 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 lawyer is highly recommended.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], February 22, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Family Law Agreements]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Changing Family Law Agreements

2017-07-24T17:43:20Z

Beatrice McCutcheon: /* Agreements about property and debt made before March 18, 2013 */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = a links to more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by both parties in the presence of a witness, 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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse 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 material 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 Relations Act''===

Agreements about property division that were made before March 18, 2013, which is when the ''Family Law Act'' came into force, have to be changed under the ''[http://www.bclaws.ca/civix/document/id/consol21/consol21/00_96128_01 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 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 lawyer is highly recommended.

===Setting aside agreements under the ''Family Law Act''===

Under the provincial ''[[Family Law Act]]'', the court cannot vary or amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Section 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>

In 2013 case from the Supreme Court of British Columbia, [https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc983/2013bcsc983.html?resultIndex=1 ''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 case, [https://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1552/2014bcsc1552.html?resultIndex=1 ''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 legislation.

===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 ''[http://www.bclaws.ca/civix/document/id/consol21/consol21/00_96128_01 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 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 lawyer is highly recommended.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], February 22, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Family Law Agreements]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Changing Family Law Agreements

2017-07-24T17:41:09Z

Beatrice McCutcheon: /* Property and debt */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = a links to more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by both parties in the presence of a witness, 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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse 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 material 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 Relations Act''===

Agreements about property division that were made before March 18, 2013, which is when the ''Family Law Act'' came into force, have to be changed under the ''[http://www.bclaws.ca/civix/document/id/consol21/consol21/00_96128_01 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 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 lawyer is highly recommended.

===Setting aside agreements under the ''Family Law Act''===

Under the provincial ''[[Family Law Act]]'', the court cannot vary or amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Section 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>

In 2013 case from the Supreme Court of British Columbia, [https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc983/2013bcsc983.html?resultIndex=1 ''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 case, [https://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1552/2014bcsc1552.html?resultIndex=1 ''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 legislation.

===Agreements about property and debt made before March 18, 2013===

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 ''[http://www.bclaws.ca/civix/document/id/consol21/consol21/00_96128_01 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 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 lawyer is highly recommended.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], February 22, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Family Law Agreements]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Changing Family Law Agreements

2017-07-22T00:10:00Z

Beatrice McCutcheon: /* Setting aside agreements under the Family Relations Act */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = a links to more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by both parties in the presence of a witness, 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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse 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 material 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 Relations Act''===

Agreements about property division that were made before March 18, 2013, which is when the ''Family Law Act'' came into force, have to be changed under the ''[http://www.bclaws.ca/civix/document/id/consol21/consol21/00_96128_01 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 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 lawyer is highly recommended.

===Setting aside agreements under the ''Family Law Act''===

Under the provincial ''[[Family Law Act]]'', the court cannot vary or amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Section 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>

In 2013 case from the Supreme Court of British Columbia, [https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc983/2013bcsc983.html?resultIndex=1 ''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 case, [https://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1552/2014bcsc1552.html?resultIndex=1 ''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 legislation.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], February 22, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Family Law Agreements]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Changing Family Law Agreements

2017-07-22T00:08:58Z

Beatrice McCutcheon: /* Setting aside agreements under the Family Relations Act */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = a links to more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by both parties in the presence of a witness, 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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse 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 material 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 Relations Act''===

Agreements about property division that were made before March 18, 2013, which is when the ''Family Law Act'' came into force, have to be changed under the ''[http://www.bclaws.ca/civix/document/id/consol21/consol21/00_96128_01#section120.1 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 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 lawyer is highly recommended.

===Setting aside agreements under the ''Family Law Act''===

Under the provincial ''[[Family Law Act]]'', the court cannot vary or amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Section 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>

In 2013 case from the Supreme Court of British Columbia, [https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc983/2013bcsc983.html?resultIndex=1 ''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 case, [https://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1552/2014bcsc1552.html?resultIndex=1 ''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 legislation.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], February 22, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Family Law Agreements]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Changing Family Law Agreements

2017-07-22T00:08:28Z

Beatrice McCutcheon: /* Setting aside agreements under the Family Relations Act */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = a links to more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by both parties in the presence of a witness, 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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse 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 material 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 Relations Act''===

Agreements about property division that were made before March 18, 2013, which is when the ''Family Law Act'' came into force, have to be changed under the [http://www.bclaws.ca/civix/document/id/consol21/consol21/00_96128_01#section120.1 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 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 lawyer is highly recommended.

===Setting aside agreements under the ''Family Law Act''===

Under the provincial ''[[Family Law Act]]'', the court cannot vary or amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Section 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>

In 2013 case from the Supreme Court of British Columbia, [https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc983/2013bcsc983.html?resultIndex=1 ''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 case, [https://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1552/2014bcsc1552.html?resultIndex=1 ''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 legislation.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], February 22, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Family Law Agreements]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Changing Family Law Agreements

2017-07-22T00:06:34Z

Beatrice McCutcheon: /* Setting aside agreements under the Family Relations Act */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = a links to more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by both parties in the presence of a witness, 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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse 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 material 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 Relations Act''===

Agreements about property division 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 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 lawyer is highly recommended.

===Setting aside agreements under the ''Family Law Act''===

Under the provincial ''[[Family Law Act]]'', the court cannot vary or amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Section 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>

In 2013 case from the Supreme Court of British Columbia, [https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc983/2013bcsc983.html?resultIndex=1 ''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 case, [https://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1552/2014bcsc1552.html?resultIndex=1 ''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 legislation.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], February 22, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Family Law Agreements]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Changing Family Law Agreements

2017-07-22T00:05:54Z

Beatrice McCutcheon: /* Setting aside agreements under the Family Law Act */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = a links to more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by both parties in the presence of a witness, 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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse 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 material 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 Relations Act''===

Agreements about property division 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 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 lawyer is highly recommended.

===Setting aside agreements under the ''Family Law Act''===

Under the provincial ''[[Family Law Act]]'', the court cannot vary or amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Section 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>

In 2013 case from the Supreme Court of British Columbia, [https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc983/2013bcsc983.html?resultIndex=1 ''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 case, [https://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1552/2014bcsc1552.html?resultIndex=1 ''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 legislation.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], February 22, 2017}}

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How Do I File an Agreement in Court?

2017-07-06T00:34:42Z

Beatrice McCutcheon: /* For more information */

{{JP Boyd on Family Law How Do I TOC|expanded=agreements}}

Written agreements about most family law issues can be filed in the Provincial Court or the Supreme Court under the ''Family Law Act'' and the rules of court:

* agreements on parental responsibilities and parenting time can be filed under s. 44(3) of the ''Family Law Act'',
* agreements on contact can be filed under s. 58(3),
* agreements on child support can be filed under s. 148(2), and
* agreements on spousal support can be filed under s. 163(3).

Agreements that are filed in court can be enforced as if they were orders of the court in which they are filed.

Among other things, this means that the Family Maintenance Enforcement Program can enforce an agreement for support exactly as it would enforce an order for support. Enforcement by FMEP is the usual reason why agreements are filed in court.

==When there is an existing court proceeding==

If a court proceeding has already been started, an agreement will normally be filed in the same court at same court registry where the proceeding was started. This helps to keep the whole court file together and prevents confusion about the status of the agreement and the status of the litigation.

If the action is in the Provincial Court, take one original copy of the agreement to the family law counter along with the file number of court proceeding. The court staff will help you with any paperwork. You don't need to see a judge or appear in court.

If the action is in the Supreme Court, take one original copy of the agreement to the family law counter along with something showing the style of cause of the court proceeding (the file number, the court registry, the name of the claimant and the name of the respondent). The court staff will give you a blank Requisition to fill out. You don't need to see a judge or appear in court.

==When a court action hasn't been started==

If there is no existing court action, it's up to you to decide where you'd like to file your agreement. Since FMEP will enforce an agreement whether it's filed in the Provincial Court or the Supreme Court, it's usually easiest just to go the courthouse nearest you.

All you need to take to the courthouse is one original copy of the agreement. The court staff will open a court file for the agreement and help you with any paperwork.

==Finding out if your agreement has been filed==

It can be a bit tricky to find out if an agreement has been filed in court or not, since there's no requirement that agreements be filed or that agreements that are filed be filed in the same court registry as any court proceedings between the parties to the agreement.

If there is an existing court action, go the court registry where the litigation began and ask to see the court file. Because family law files are sealed from the general public you'll need to bring some photo ID.

If there isn't an existing court action, you'll need to make at least two stops:
#First, go to the local Provincial Court to ask the staff to do a province-wide search to see if a Provincial Court file has been opened in your name and the name of the other party.
#Second, go to the closest Supreme Court to do the same search of Supreme Court files. You can also do the Supreme Court search using Court Services Online (https://justice.gov.bc.ca/cso/index.do), but you won't be able to get any details of the court file other than that one exists.

==For more information==

You can find more information about family law agreements in the chapter [[Family Law Agreements]].

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], July 5, 2017}}

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How Do I File an Agreement in Court?

2017-07-06T00:34:10Z

Beatrice McCutcheon: /* Finding out if your agreement has been filed */

{{JP Boyd on Family Law How Do I TOC|expanded=agreements}}

Written agreements about most family law issues can be filed in the Provincial Court or the Supreme Court under the ''Family Law Act'' and the rules of court:

* agreements on parental responsibilities and parenting time can be filed under s. 44(3) of the ''Family Law Act'',
* agreements on contact can be filed under s. 58(3),
* agreements on child support can be filed under s. 148(2), and
* agreements on spousal support can be filed under s. 163(3).

Agreements that are filed in court can be enforced as if they were orders of the court in which they are filed.

Among other things, this means that the Family Maintenance Enforcement Program can enforce an agreement for support exactly as it would enforce an order for support. Enforcement by FMEP is the usual reason why agreements are filed in court.

==When there is an existing court proceeding==

If a court proceeding has already been started, an agreement will normally be filed in the same court at same court registry where the proceeding was started. This helps to keep the whole court file together and prevents confusion about the status of the agreement and the status of the litigation.

If the action is in the Provincial Court, take one original copy of the agreement to the family law counter along with the file number of court proceeding. The court staff will help you with any paperwork. You don't need to see a judge or appear in court.

If the action is in the Supreme Court, take one original copy of the agreement to the family law counter along with something showing the style of cause of the court proceeding (the file number, the court registry, the name of the claimant and the name of the respondent). The court staff will give you a blank Requisition to fill out. You don't need to see a judge or appear in court.

==When a court action hasn't been started==

If there is no existing court action, it's up to you to decide where you'd like to file your agreement. Since FMEP will enforce an agreement whether it's filed in the Provincial Court or the Supreme Court, it's usually easiest just to go the courthouse nearest you.

All you need to take to the courthouse is one original copy of the agreement. The court staff will open a court file for the agreement and help you with any paperwork.

==Finding out if your agreement has been filed==

It can be a bit tricky to find out if an agreement has been filed in court or not, since there's no requirement that agreements be filed or that agreements that are filed be filed in the same court registry as any court proceedings between the parties to the agreement.

If there is an existing court action, go the court registry where the litigation began and ask to see the court file. Because family law files are sealed from the general public you'll need to bring some photo ID.

If there isn't an existing court action, you'll need to make at least two stops:
#First, go to the local Provincial Court to ask the staff to do a province-wide search to see if a Provincial Court file has been opened in your name and the name of the other party.
#Second, go to the closest Supreme Court to do the same search of Supreme Court files. You can also do the Supreme Court search using Court Services Online (https://justice.gov.bc.ca/cso/index.do), but you won't be able to get any details of the court file other than that one exists.

==For more information==

You can find more information about family law agreements in the chapter [[Family Law Agreements]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Change a Family Law Agreement?

2017-07-06T00:30:05Z

Beatrice McCutcheon: /* For more information */

{{JP Boyd on Family Law How Do I TOC|expanded=agreements}}

The most common family law agreements are:
*''cohabitation agreements'', used when a couple plan on living together but don't plan on marrying,
*''marriage agreements'', used when a couple plan to marry, and
*''separation agreements'', used when married spouses or unmarried spouses have separated.

All of these agreements can be changed once they've been executed, as long as the parties to the agreement agree that the agreement should be changed.

==What can be changed==

Normally, people only want to change one or two parts of an agreement while keeping the rest of the agreement intact. If you want a brand new agreement altogether, be careful. If the other party won't agree to throw out the old agreement, he or she will be entitled to go to court to enforce the old agreement, whether you're still happy with that agreement or not. This is, after all, why people execute contracts in the first place: they expect them to be permanent and they expect that the courts will hold people to the agreements they have made.

==Making the new agreement==

Since, in most cases, the original agreement is being kept, changes to that agreement are made in new agreements called "amending agreements", "addendum agreements," or some other language to that effect. The new agreement is a separate contract that says in what ways the original contract is being changed. The new agreement will:

*state, in the recitals, the name and the date of the agreement that is being changed,
*briefly, also in the recitals, explain why the change is necessary, and
*state, for each change, the paragraph affected in the old agreement and how that paragraph is to be changed.

You might handle the first and second points by saying something like this: "this agreement amends the Separation Agreement executed by the parties on 1 April 2010," and "following the execution of the Separation Agreement, the schedule of the parties' parenting time has become unworkable as a result of certain changes in their hours of employment."
The individual changes might be handled like this:

<blockquote><tt>4. Paragraph 12 of the Separation Agreement will be cancelled and is replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>"Sally will return the children to Harry's care at 7:00pm or at the end of the evening shift, whichever is earlier. Sally will give Harry 24 hours notice in the event she is scheduled to work the evening shift on the days she is to return the children to Harry's care."</tt></blockquote></blockquote>
<blockquote><tt>5. Paragraph 36 of the Separation Agreement will be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>"Sally will pay child support to Harry in the amount of $425 per month for as long as the children remain children of the marriage as defined by the ''Divorce Act''."</tt></blockquote></blockquote>

The key points here are that you must specifically identify the parts that are to be changed and how they are being changed, and the new language must be as clear and unambiguous as the language of the original agreement.

==Executing the new agreement==

The new agreement must be executed in front of witnesses in the same manner as the original agreement was executed. The witnesses to the new agreement do not need to be the same people who witnessed the original agreement.

It is also a good idea (but not required) that each of the parties and the witnesses initial each page of the new agreement other than the page with the parties' signatures.

==For more information==

You can find more information about changing a family law agreement in the chapter [[Family Law Agreements]].

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], July 5, 2017}}

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How Do I Change a Family Law Agreement?

2017-07-06T00:29:28Z

Beatrice McCutcheon: /* Executing the new agreement */

{{JP Boyd on Family Law How Do I TOC|expanded=agreements}}

The most common family law agreements are:
*''cohabitation agreements'', used when a couple plan on living together but don't plan on marrying,
*''marriage agreements'', used when a couple plan to marry, and
*''separation agreements'', used when married spouses or unmarried spouses have separated.

All of these agreements can be changed once they've been executed, as long as the parties to the agreement agree that the agreement should be changed.

==What can be changed==

Normally, people only want to change one or two parts of an agreement while keeping the rest of the agreement intact. If you want a brand new agreement altogether, be careful. If the other party won't agree to throw out the old agreement, he or she will be entitled to go to court to enforce the old agreement, whether you're still happy with that agreement or not. This is, after all, why people execute contracts in the first place: they expect them to be permanent and they expect that the courts will hold people to the agreements they have made.

==Making the new agreement==

Since, in most cases, the original agreement is being kept, changes to that agreement are made in new agreements called "amending agreements", "addendum agreements," or some other language to that effect. The new agreement is a separate contract that says in what ways the original contract is being changed. The new agreement will:

*state, in the recitals, the name and the date of the agreement that is being changed,
*briefly, also in the recitals, explain why the change is necessary, and
*state, for each change, the paragraph affected in the old agreement and how that paragraph is to be changed.

You might handle the first and second points by saying something like this: "this agreement amends the Separation Agreement executed by the parties on 1 April 2010," and "following the execution of the Separation Agreement, the schedule of the parties' parenting time has become unworkable as a result of certain changes in their hours of employment."
The individual changes might be handled like this:

<blockquote><tt>4. Paragraph 12 of the Separation Agreement will be cancelled and is replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>"Sally will return the children to Harry's care at 7:00pm or at the end of the evening shift, whichever is earlier. Sally will give Harry 24 hours notice in the event she is scheduled to work the evening shift on the days she is to return the children to Harry's care."</tt></blockquote></blockquote>
<blockquote><tt>5. Paragraph 36 of the Separation Agreement will be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>"Sally will pay child support to Harry in the amount of $425 per month for as long as the children remain children of the marriage as defined by the ''Divorce Act''."</tt></blockquote></blockquote>

The key points here are that you must specifically identify the parts that are to be changed and how they are being changed, and the new language must be as clear and unambiguous as the language of the original agreement.

==Executing the new agreement==

The new agreement must be executed in front of witnesses in the same manner as the original agreement was executed. The witnesses to the new agreement do not need to be the same people who witnessed the original agreement.

It is also a good idea (but not required) that each of the parties and the witnesses initial each page of the new agreement other than the page with the parties' signatures.

==For more information==

You can find more information about changing a family law agreement in the chapter [[Family Law Agreements]].

{{REVIEWED | reviewer = [[May 9, 2017]], September 27, 2014}}

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How Do I Execute a Family Law Agreement?

2017-07-06T00:28:04Z

Beatrice McCutcheon: /* For more information */

{{JP Boyd on Family Law How Do I TOC|expanded=agreements}}

The most common family law agreements are:
*''cohabitation agreements'', used when a couple plan on living together but don't plan on marrying,
*''marriage agreements'', used when a couple plan to marry, and
*''separation agreements'', used when married spouses or unmarried spouses have separated.

Other agreements might include ''interim agreements'', made after negotiations have started but before a final settlement, ''parenting agreements'', ''trust agreements'', ''confidentiality agreements'' and so on.

==Execution==

All family law agreements are executed in the same way: the person making the agreement signs it in the presence of someone else, while that person watches. That's it!

==Witnesses==

The person who witnesses the signature can be anybody, with just a few exceptions. Witnesses must be 19 years of age or older, they must be sane, and they shouldn't be another party to the agreement or someone who stands to benefit from the agreement. ''It is not necessary to pay to have a lawyer or notary public serve as witness.''

The role of the witness is to simply say that the witness knew the person signing the agreement and saw him or her sign the agreement: "I saw Frank sign the agreement, and I knew it was Frank because Frank has been my neighbour for the last six years" or "I saw Ming sign the agreement, and I knew it was Ming because I saw her driver's licence and the picture matched Ming's appearance and the name on the licence matched the name on the agreement."

Signing the agreement does not make the witness a party to the agreement or put the witness under any obligation at all to either party.

==Signing the agreement==

Family law agreements are executed by having each of the parties sign their names, using their normal signatures, in a spot on the last page of the agreement that looks like this:

<blockquote><tt>SIGNED by Yitzhak    ) 
on April 20, 2013,   ) 
at Salmon Arm, BC,   ) 
in the presence of:  ) 
                     ) 
___________________  )  ___________________ 
Signature            )  YITZHAK BERNSTEIN 
___________________  ) 
Name                 ) 
___________________  ) 
Occupation           ) 
___________________  ) 
Address              ) 
___________________  )</tt></blockquote>

The party to this agreement, Yitzhak in this case, signs his normal signature above the line on the right. The witness signs above the top line on the left and fills out the extra information about the witness' address and occupation.

It is also a good idea (but not required) that each of the parties and the witnesses initial each page of the agreement other than the page with the parties' signatures.

An agreement that has been executed by both parties is called a ''perfected agreement''.

==For more information==

You can find more information about making and executing a family law agreement in the chapter [[Family Law Agreements]].

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], July 5, 2017}}

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Changing Family Law Agreements

2017-02-23T18:32:57Z

Beatrice McCutcheon: /* Resources and links */

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}}
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| resourcetype = a links to more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by both parties in the presence of a witness, 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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse 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 material 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 amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Section 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>

In 2013 case from the Supreme Court of British Columbia, [https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc983/2013bcsc983.html?resultIndex=1 ''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 case, [https://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1552/2014bcsc1552.html?resultIndex=1 ''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 legislation.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], February 22, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Family Law Agreements]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Changing Family Law Agreements

2017-02-23T18:31:44Z

Beatrice McCutcheon: /* Property and debt */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = a links to more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by both parties in the presence of a witness, 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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse 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 material 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 amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Section 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>

In 2013 case from the Supreme Court of British Columbia, [https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc983/2013bcsc983.html?resultIndex=1 ''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 case, [https://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1552/2014bcsc1552.html?resultIndex=1 ''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 legislation.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Barbara Nelson]] and [[Beatrice McCutcheon]], September 17, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Family Law Agreements]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Changing Family Law Agreements

2017-02-23T18:29:45Z

Beatrice McCutcheon: /* Property and debt */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = a links to more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by both parties in the presence of a witness, 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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse 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 material 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 amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Section 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>

In 2013 case from the Supreme Court of British Columbia, [https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc983/2013bcsc983.html?resultIndex=1 ''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 intervent to situations which are "unjust or unreasonable". In a 2014 case of the same Court, [https://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1552/2014bcsc1552.html?resultIndex=1 ''Remmem'' v. ''Remmem''], the Court 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 legislation.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Barbara Nelson]] and [[Beatrice McCutcheon]], September 17, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Family Law Agreements]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Changing Family Law Agreements

2017-02-23T18:29:06Z

Beatrice McCutcheon: /* Property and debt */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = a links to more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by both parties in the presence of a witness, 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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse 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 material 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 amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Section 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Barbara Nelson]] and [[Beatrice McCutcheon]], September 17, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Family Law Agreements]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Changing Family Law Agreements

2017-02-23T18:09:18Z

Beatrice McCutcheon: /* Parental responsibilities, parenting time and contact */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = a links to more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by both parties in the presence of a witness, 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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse 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 material 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 amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Section 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Barbara Nelson]] and [[Beatrice McCutcheon]], September 17, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Family Law Agreements]]
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[[Category:JP Boyd on Family Law]]

Changing Family Law Agreements

2017-02-23T18:06:48Z

Beatrice McCutcheon: /* Amending an agreement */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = a links to more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements separation agreements]
}}After a family law agreement has been signed, one of three things can happen:

#The parties can follow the agreement and everything continues as it should.
#The circumstances of the parties or a child change and their agreement must also change.
#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 negotiation. The hard way usually involves a court proceeding, 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 party 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 order 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:

<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>Sally will also have parenting time 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.</tt></blockquote></blockquote>
<blockquote><tt>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 support obligation, 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.</tt></blockquote>

Just like the original agreement, the amending agreement must be signed by both parties in the presence of a witness, 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 resolution like mediation or arbitration.

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 evidence and the arguments and then make a decision, called an ''award'', that resolves the dispute and is binding 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 judge, who doesn't know the people involved and may make a decision 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 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 agreement. In fact, the Court of 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 law of contracts:

#the agreement was ''not freely entered into'', in other words, a party was under duress when the agreement was negotiated or executed,
#the agreement is ''unconscionable'', in other words, the agreement is obviously and seriously unfair to a party,
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by ''mistake'',
#the agreement was signed without ''full disclosure'' having been made, or
#a party signed the agreement because ''misleading information'' had been provided.

====Duress, coercion, 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 spouse 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 material 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 amend 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 act says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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 proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

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 parent as the guardian of a child. 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 contact====

Under s. 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

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 Guidelines 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:

<blockquote><tt>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.</tt></blockquote>

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:

#the payor's income has increased,
#the payor's income has decreased,
#one or more children are no longer living mostly with the parent receiving support,
#one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
#one or more children are no longer entitled to receive support, or
#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 support 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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>

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

====Property and debt====

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:

<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote>


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [[Child Support Guidelines]]

===Links===

*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Barbara Nelson]] and [[Beatrice McCutcheon]], September 17, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Family Law Agreements]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Enforcing Family Law Agreements

2017-02-23T18:05:13Z

Beatrice McCutcheon: /* Resources and links */

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People who sign a family law agreement are signing a ''contract''. A contract is an agreement between two or more people that creates an obligation to do or to not do something. Other kinds of contracts include the rental agreement a tenant has with a landlord, the lease agreement you might have with a car company, or the employment contract an employee has with an employer. Contracts can be enforced by the courts when someone doesn't do what the contract requires of them; in fact, that's the whole point of having a contract. You want a document that describes your obligations to each other and you want to have a way of making the other party do what they're supposed to do.

This section discusses how family law agreements can be enforced by the courts and by the [[Family Maintenance Enforcement Program]], an agency of the provincial government that can help with the enforcement of agreements for the payment of child support and spousal support.

==Introduction==

When someone who has signed a family law agreement doesn't do the things the agreement requires, that person is ''in breach'' of the agreement. In family law, unlike in the law about commercial contracts, a party to an agreement can breach just part of the agreement without being considered to be in breach of the whole agreement. As a result, when someone breaches just a part of a family law agreement, the other party isn't allowed to treat the entire agreement as having been rejected by the breaching party, no matter how important the breach was, and the agreement continues to be binding on both parties.

The ''[[Family Law Act]]'' says this about family law agreements at s. 6:

<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
<blockquote><blockquote><tt>(a) to resolve a family law dispute, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) respecting</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a matter that may be the subject of a family law dispute in the future,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the implementation of an agreement or order.</tt></blockquote></blockquote></blockquote>
<blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote>
<blockquote><tt>(4) Subsection (3) applies whether or not</tt></blockquote>
<blockquote><blockquote><tt>(a) there is consideration,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the agreement has been made with the involvement of a family dispute resolution professional, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the agreement is filed with a court.</tt></blockquote></blockquote>

When a term of an agreement is breached, the other party is entitled to take steps to make the breaching party comply with his or her obligations under the agreement. This is called ''enforcing'' the agreement. How a separation agreement is enforced depends largely on which particular term of the agreement has been breached. Some terms, like those dealing with child support, are fairly easy to enforce. Other terms, like those dealing with the allocation of parental responsibilities, can be much harder to deal with.

===Enforcement under the ''Family Law Act''===

The ''[[Family Law Act]]'' allows certain family law agreements about certain subjects to be filed in court and enforced under the act:

*agreements on ''parental responsibilities and parenting time'' can be filed under s. 44(3),
*agreements for ''contact'' can be filed under s. 58(3),
*agreements for ''child support'' can be filed under s. 148(2), and
*agreements for ''spousal support'' can be filed under s. 163(3).

Once filed in court, these agreements can be enforced under the ''Family Law Act'' in the same way as orders are enforced under the act.

The act has different ways of enforcing orders that change depending on the subject of the order (or agreement). Where the act provides a way particular way of enforcing an order, the order can be enforced under that ''specific'' enforcement power and by the act's ''extraordinary'' enforcement power. Where the act does not provide a particular way of enforcing an order, the order can be enforced under the act's ''general'' enforcement power and by its ''extraordinary'' enforcement power.

====General enforcement power====

Under s. 230 of the ''[[Family Law Act]]'', the court can enforce an order (or agreement) by requiring a person:

*to post security, usually by paying a sum of money into court,
*to pay the expenses of the other party incurred from the person's breach,
*to pay up to $5,000 to the other party or a child or spouse who was affected by the person's breach, or
*to pay up to $5,000 as a fine.

These provisions apply to agreements about parental responsibilities, child support, and spousal support.

====Extraordinary enforcement power====

Under s. 231 of the act, when no other order will be sufficient to make someone comply with an order (or agreement), the court can enforce the order (or agreement) by imprisoning the breaching party for up to 30 days.

This provision applies to agreements about parental responsibilities, parenting time, contact, child support, and spousal support.

===Enforcement under other legislation===

The federal ''[[Divorce Act]]'' does not address the enforcement of family law agreements, however other laws do, such as the provincial ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the provincial ''[http://canlii.ca/t/8495 Personal Property Security Act]''.

====Orders about child support and spousal support====

Under ss. 148 and 163 of the ''Family Law Act'', an agreement about child support or spousal support that has been filed in court can also be enforced under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

Agreements about child support or spousal support made outside of British Columbia can be filed in court under the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'', and then be enforced under the ''Family Maintenance Enforcement Act''.

====Orders about property====

Under s. 99 of the ''[[Family Law Act]]'', a party to a family law agreement about property can file a Notice of Agreement in the Land Title Office that will be registered as a charge on the title of a property under the ''[http://canlii.ca/t/8456 Land Title Act].'' This will stop the property from being transferred or mortgaged until the Notice of Agreement is cancelled.

Under s. 100 of the act, a party to a family law agreement about a manufactured home can file a Financing Statement in the [http://www.bcregistryservices.gov.bc.ca/bcreg/pprpg/ppinfo.page Personal Property Registry] that will be registered against the manufactured home under the ''[http://canlii.ca/t/8495 Personal Property Security Act]''. This will stop the manufactured home from being transferred until the Financing Statement is cancelled.

==Agreements about the care of children==

Under the federal ''[[Divorce Act]]'', married spouses have ''custody'' of their children, and the schedule of their time with the children is called ''access''. Married spouses could make an agreement talking about the care of their children in terms of custody and access, but should probably use the language used by the provincial ''[[Family Law Act]]'' because only that act provides specifically for the enforcement of agreements.

Under the ''Family Law Act'', guardians, who may or may not be parents, have ''parental responsibilities'' for raising the children, and the schedule of their time with the children is ''parenting time''. People who are not guardians may have ''contact'' with a child.

===Parental responsibilities===

An agreement about parental responsibilities can be filed in court under s. 44(3) of the ''Family Law Act'' and be enforced through the act's general and extraordinary enforcement powers.

===Parenting time and contact===

A written agreement about parenting time can be filed in court under s. 44(3); a written agreement about contact with a child can be filed in court under s. 58(3). These agreements can be enforced through the specific enforcement powers found in ss. 61 and 63 as well as the act's extraordinary enforcement powers.

====Denial of parenting time or contact====

Under s. 61 where someone has been ''wrongfully denied'' parenting time or contact in the previous 12 months, the court can:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

The court can enforce agreements for parenting time or contact using its extraordinary power to jail someone, as well as certain other extraordinary powers intended for problems like these. Under s. 231(4), where a guardian withholds parenting time or contact, the court can require a police officer to take the child to the person entitled to parenting time or contact. Under s. 231(5), where a person with contact refuses to return the child to his or her guardian, the court can require a police officer to take the child to his or her guardian.

Under s. 62(2), the denial of parenting time or contact is not wrongful if:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

====Failure to exercise parenting time or contact====

Under s. 63 where someone "fails repeatedly" to exercise a right of parenting time or contact under an agreement, the court can:

*require the parties to attend a course of dispute resolution,
*require one or more parties or the child to attend counselling,
*require the transfer of the child between the parties to be supervised,
*require the reimbursement of expenses incurred as a result of the failure,
*require the posting of security, or
*require the breaching person to report to the court.

The court can enforce these agreements using its extraordinary power to jail a person.

==Agreements for child support and spousal support==

When a payor falls behind in his or her support payments as required by an agreement, or stops making them altogether, he or she is said to be in ''arrears'' of support. Support is often the easiest part of an agreement to enforce.

Once an agreement is filed in court, under s. 148 of the ''[[Family Law Act]]'' for child support and s. 163 for spousal support, the agreement can be enforced through the act's general and extraordinary enforcement powers. Filed agreements can also be enforced by the provincial [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program]. This is a free service that can be very effective in forcing a payor to meet his or her obligations and monitor ongoing payments.

==Agreements about property and debt==

Where an agreement provides for the division of property and debt and someone doesn't live up to his or her obligations, the agreement can be enforced by starting a court proceeding in the Supreme Court for ''breach of contract'', asking the court to make an order for the ''specific performance'' of the agreement by the person in breach, plus an order for costs. An order for the specific performance of an agreement requires the breaching person to do whatever it is that the agreement required of him or her, like transferring real property, surrendering personal property, or paying a debt. An order for costs requires the breaching person to pay some money toward the cost of the court proceeding.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/8456 Land Title Act]''
* ''[http://canlii.ca/t/8495 Personal Property Security Act]''

===Links===

* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: About support enforcement]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/enforce-execut.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.familylaw.lss.bc.ca/help/who_Family_Maintenance_Enforcement_Program.php Legal Services Society’s Family Law Website: Information about FMEP]
* [http://www.bcregistryservices.gov.bc.ca/bcreg/pprpg/ppinfo.page Personal Property Registry website]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], February 22, 2017}}

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[[Category:JP Boyd on Family Law]]

Agreements after Separation

2017-02-23T18:01:50Z

Beatrice McCutcheon: /* Resources and links */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
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{{Clicklawbadge
| resourcetype = more resources dealing with 
|link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements]
}}A separation agreement is a contract that records a settlement of the issues that arise when a married or unmarried relationship ends. Unlike marriage and cohabitation agreements which are made when a relationship starts, separation agreements are made when the relationship is over.

Separation agreements can be an effective and inexpensive way of settling things. However, the terms of the agreement must be fair, and the parties must be able to get along well enough to negotiate the deal and then put it into action when it's done.

This section provides an introduction to separation agreements, discusses how separation agreements are formed, and describes the legal requirements of separation agreements. It also looks at the typical subjects of separation agreements in some detail. In addition, it discusses the effect of reconciliation on separation agreements.

==Introduction==

Every separating couple has three options to resolve the legal issues between them:

#settle the matters between them out of court through negotiation or mediation, or through some other process like arbitration or collaborative settlement processes,
#have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process, or
#give up and just walk away from the mess.

It is almost always better to negotiate and settle a dispute than to begin a court proceeding and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process.

A couple can reach a settlement at any time, even after a court proceeding has started. Typically a settlement reached before a proceeding has begun is put into the form of a separation agreement. Settlements reached after the start of a proceeding can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a ''consent order'', an order that both parties agree the judge should make.

Separation agreements can deal with almost any issue a couple have to address, from who will keep the cats, to how the mortgage will be paid, to how the children's post-secondary education costs will be handled. They also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple.

Of course, separation agreements aren't for everyone. There must be a certain basic amount of mutual trust and good faith, and each party must have a certain flexibility and a willingness to accommodate the other side. A separation agreement will not be appropriate where a couple are so filled with anger, jealousy or stubbornness that even a basic level of mutual respect is absent and dialogue is not possible.

==Alternatives to separation agreements==

Settlement can be reached in a number of different ways before a court proceeding has started, through negotiation, mediation, a collaborative settlement process, or arbitration. Settlements reached in these ways are almost always recorded in the form of a separation agreement.

Settlements reached after a proceeding has started may be recorded as separation agreements if the terms of the settlement are complicated or if there are concerns about whether a term of the settlement can be put into a court order. In that case, the parties may enter into a separation agreement followed by a short consent order that resolves the issues raised in the court proceeding. Otherwise, a settlement of litigation will be recorded as minutes of settlement and a consent order.

====Minutes of settlement====

Minutes of settlement are a written record of the settlement of a court proceeding. They are reached after a court proceeding has begun and are usually used to describe the terms of a consent order, an order that both parties agree the court should make. Both of the lawyers and each of the parties will sign the minutes of settlement; usually only the lawyers will sign the final consent order.

Minutes of settlement sometimes have a rough-and-ready feel to them, as they are usually used to record an often hasty settlement of the legal issues, a settlement that is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less comprehensive than separation agreements. However, even though they lack the same fine-tuning and detail, minutes of settlement are just as binding upon the parties as a separation agreement would be. Both are contracts and can be enforced as such.

Minutes of settlement should:

#be signed by both lawyers and by both parties, although the signature of the parties isn't strictly necessary,
#deal with each significant issue in a final manner, and
#be attached to the draft consent order submitted to the court for its approval.

====Consent orders====

A consent order is an order that both parties agree that a judge should make. Consent orders are only appropriate if litigation has started. It is not necessary to have minutes of settlement done before a consent order is agreed to.

When a judge pronounces an order by consent, the order has just the same effect as a final order reached after a trial and is binding upon the parties as a final order.

====Minutes of settlement and consent orders====

The advantage of minutes of settlement is that the minutes can stand alone as evidence of the written agreement of the parties, while the form of a draft consent order, which may reflect the parties' agreement, still requires the court's approval. Moreover, if the terms of a draft consent order are argued about, there may not be any evidence of the agreement — as would be provided by minutes of settlement — which a court can use to decide the matter.

Consent orders have unique advantages of their own, in that it is usually extremely difficult to vary an order pronounced by consent without a serious and unanticipated change in circumstances, and because such orders are almost impossible to appeal.

===Other final agreements===

Any dispute a couple has can be resolved by a formal contract of some nature. Separation agreements can be made between married spouses or unmarried spouses and deal with a large range of issues, from the care of children to the division of property and debt.

Some couples may only have one issue to resolve and the usual sort of separation agreement isn't required. People who are just parents and never married or cohabited may want a parenting agreement that talks about parental responsibilities and the allocation of parenting time. Couples, including unmarried spouses who lived together for less than two years, who only need to deal with child support and/or spousal support may want a support agreement that deals with either or both issues. Couples who only need to resolve who keeps what property and which debts may want a simple property agreement.

Family law agreements can also involve more people than the people involved in a relationship. Separated parents might sign an agreement for contact with grandparents who want to see their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money.

==Entering into a separation agreement==

A separation agreement can be negotiated and signed at any time after a married or unmarried relationship has broken down. A separation agreement can be signed after a court proceeding has been started or before one has even been considered.

===The basic process===

The process for entering into a separation agreement is fairly simple. The parties discuss the issues resulting from the breakdown of their relationship between themselves (and, hopefully, in consultation with their lawyers as well). They attempt to reach a resolution of each of the legal issues that is as satisfactory to both of them as possible. It's a good idea to take notes and record how each issue is resolved, as these notes may wind up forming the basis for any agreement that might be reached.

The settlement process is a process of negotiation: each party usually has a pretty good idea of how they would like to see things resolved, and then, following the exchange of these ideas, a compromise is reached that represents a blending of the two positions. Once settlement is reached, one of the parties will draw up a formal agreement and give it to the other party. This draft is carefully reviewed to ensure that it accurately reflects the agreement that was reached, to check whether anything was left out, and to make sure that there are no other issues that need to be discussed and included.

Drafting a separation agreement is something that requires a great deal of skill and a solid understanding of family law and contract law. While kits are available that can guide you in drafting an agreement, I highly recommend that you hire a lawyer to deal with the matter when the content of your agreement is anything other than completely straightforward.

Once both parties are content with the text of the agreement, they must each take the agreement to their respective lawyers — or to any lawyer, for that matter — for advice on how the agreement affects their legal rights and the options they may have open to them if they don't sign the agreement. This is called getting ''independent legal advice''. This stage is critical for three reasons:

#If you are entering into an agreement that will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a court proceeding.
#You must understand the obligations and rights you have under the agreement.
#It stops either party from claiming, later on, that he or she didn't know what the agreement meant or that he or she was at a disadvantage because the other party's lawyer drafted the agreement.

After each party has had independent legal advice about the agreement, they will sign the agreement in the presence of a witness if they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement him- or herself.

Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement."

If the parties had legal advice, the lawyer who gave the advice will usually also sign a certificate confirming that: the party received advice as to how the agreement affects his or her legal interests; the party understood the terms of the agreement; and, the party wasn't forced into making the agreement. This is usually called a ''Certificate of Independent Legal Advice''.

Normally, four separate original copies of a separation agreement are executed. This is so that the parties and their lawyers can each have an original copy of the agreement. Sometimes, an extra original copy is executed in case the agreement must be filed in court.

===If you are negotiating an agreement and have a lawyer===

Even if you have a lawyer it can be extremely tempting to work something out with your ex on the side. If you feel even remotely tempted to do so, call your lawyer! Make sure your lawyer knows that you're trying to explore settlement, and make sure you understand what to say and what not to say.

Nothing is quite as frustrating as finding out that a client has negotiated an inadequate or prejudicial agreement without the lawyer's input. While you, the client, are free to do as you want and can arrive at any settlement you wish, be warned that you may find yourself settling for poor terms compared to what your lawyer might have been able to negotiate for you or compared to the results you might have obtained at trial. Remember that you may be stuck with any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one.

Call your lawyer before you sign or initial anything. This is what you're paying her for.

==Formal requirements of separation agreements==

A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord, or the company from which you lease your car. On the other hand, it's a special kind of agreement, different from commercial contracts, because it deals with family law issues that are also discussed in the ''[[Family Law Act]]'' and the ''[[Divorce Act]]''. As a result, the law dealing with separation agreements is a blend of legislation, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts.

The whole point of a separation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, the agreement must be enforceable and it must be able withstand a challenge in court, that is, it must be drafted in such a way and contain terms that are reasonably fair such that a court will uphold the agreement if it is attacked.

A separation agreement must therefore conform to certain basic rules, including these:

*A separation agreement must be in writing.
*The agreement must be signed by each party, and should be signed in the presence of a witness. Although an agreement made without a witness can still be valid and binding, it is a very good idea to have a witness (or witnesses) because she (or they) can confirm that the parties signed the agreement. In addition, sections 94 and 165 of the ''[[Family Law Act]]'' provide that a court cannot make an order about division of property and debt or spousal support that has been dealt with in a written, witnessed agreement between the parties unless the court has set aside the agreement.
*Neither party should be under a legal disability at the time the agreement is signed, however children who are parents or spouses may enter into a binding agreement.
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a proper family law agreement, you might want to think about certain other principles of contract law such as these:

*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
*Both parties must make full and complete disclosure of their circumstances going into the agreement.
*The parties cannot make an illegal bargain, that is, they can't make an agreement that obliges them to do something against the law.
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may be interpreted in favour of the party who didn't have the lawyer.
*The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void.

Family law agreements are also subject to other principles that don't necessarily apply to commercial contracts:

*The parties must make full, complete and honest disclosure of their financial circumstances going into the agreement.
*If one term of a separation agreement is void then, unless the agreement says otherwise, only that term will fail and the rest of the agreement will continue as a valid agreement that is binding on the parties.
*A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement, that is, you can't say the whole agreement has been broken because the other party didn't do something he or she was supposed to do.
*While the parties can later agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force.

Note that the courts will rarely if ever uphold an agreement that attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward his or her children. The court will not consider itself bound by an agreement that says a person will never have to pay child support.

==The possible subjects of a separation agreement==

The potential subjects of a separation agreement are limited only by common sense and what the law will allow. That said, it is always best to be as realistic as possible when drafting a separation agreement. Is a schedule of payments unrealistically difficult for one party? Will the children be able to adapt to a shared parenting arrangement? Are the parties' obligations to one another too complex? Are they too optimistic? Are they affordable? While it is best that all of the issues between the parties be dealt with in a separation agreement, the simpler an agreement is, the better it will usually work in real life.

===Children===

Issues about parenting after separation are covered by the federal ''[[Divorce Act]]'' for married spouses and by the provincial ''[[Family Law Act]]'' for married spouses, unmarried spouses and other unmarried couples, and other people who have an interest in the care of a child.

The ''Divorce Act'' uses some pretty old fashioned language to talk about children, ''custody'' and ''access''. The ''Family Law Act'' talks about people who are the ''guardians'' of a child and have ''parental responsibilities'' and ''parenting time'', and people who are not guardians and have ''contact''.

====Custody and access====

There are two basic types of custody available under the ''Divorce Act'': sole custody and joint custody. Sole custody is less common than it used to be, and is usually only appropriate where the parties are constantly at each other's throats or where one party is or expects to be absent from the child's life. Joint custody is far more common than sole custody. In this situation, both parents are custodians of the children and both have responsibility for making decisions about the children.

Joint custody has little to do with how much time the child spends with each parent. The child's time can be shared equally or almost equally, or the child can see a parent only on weekends, and the parents can still have joint custody.

====Guardianship====

Under s. 39(1) of the ''[[Family Law Act]]'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardian. A parent who has never lived with his or her child isn't a guardian unless the parent "regularly cares" for the child.

Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way, are parents who aren't guardians to begin with — parents who have never lived with the child and have not "regularly cared" for the child.) Someone who is not a parent can't be made a guardian by an agreement.

====Parental responsibilities====

Only a guardian can have parental responsibilities for a child under the ''Family Law Act''. These responsibilities are listed at s. 41:

<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote>
<blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;</tt></blockquote>
<blockquote><tt>(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote>
<blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote>
<blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>

Guardians can share one or more of these parental responsibilities, or one or more parental responsibilities can be allocated just to one guardian, so that only that guardian has responsibility for that issue.

====Parenting time and contact====

Parenting time and contact are both about the child's parenting schedule, although parenting time is about a bit more than just the child's schedule. Only guardians have parenting time; people who aren't guardians have contact with a child.

The terms of a child's parenting schedule can be very specific or, where the parties get along exceptionally well with one another, the terms can be as vague as "Jane will have liberal and generous parenting time with the child."

If there has been a history of difficulty exercising parenting time or contact, or there is even a smidgen of conflict between the parties, it can be important to spell out the child's schedule in more detail to avoid future arguments. The terms of the child's schedule usually spell out when the party will see the child on a week-to-week basis, such as "John will have the child from Friday at the end of school to the following Sunday at 7:00pm, every other week, plus each Wednesday from the end of school until 7:00pm."

Children's schedules can also take into account:

*the child's birthday,
*Mothers' Day and Fathers' Day,
*the parties' birthdays,
*school and religious holidays,
*extended access when there is a civic holiday or a professional development day at school,
*communication by telephone and computer, including email, instant messaging and video conferencing,
*responsibility for picking up and dropping off the child,
*school events,
*the child's extracurricular activities, and
*birthdays of the child's friends.

===Child support===

Child support is a monthly sum, paid by the parent who has the child for the least amount of time, the ''payor'', to the parent who has the child for the most amount of time, to help cover the day-to-day living expenses of the child. Child support may also be paid when the parents share parenting time with the child more or less equally but there is a difference between the parents' incomes. The amount of child support that is paid is almost always dealt with by referring to the [[Child Support Guidelines]], which set out the amount of a parent's child support obligation according to the number of children support is being paid for and the payor's income.

A good separation agreement will:

#state the income of each parent at the time the agreement is made,
#state the monthly child support to be paid,
#set up a system that requires the parties to exchange copies of their tax returns and Canada Revenue Agency notices of assessment each year or every other year,
#provide for a review of child support if the payor's income rises or falls, and
#provide for the recalculation of the parties' shares of the cost of the child's special expenses if either party's income rises or falls.

The Guidelines are an extremely convenient way to calculate a party's child support obligations up to the point where the spouse paying support, the ''payor'', has parenting time with the child for 39% or less of the time. Once the payor has 40% or more of the child's time, the Guidelines tables become less important, and child support is assessed based on, among other things, each party's income and the amount of expenses related to the child that each party is paying. In the context of separation agreements, this allows for a little more flexibility in determining child support, but makes the annual exchange of financial information even more important.

===Spousal support===

Spousal support is paid by one spouse to the other to help cover that person's day-to-day living expenses. A separation agreement that provides for the payment of spousal support should be negotiated bearing in mind all of the things the court would have considered in making an order for spousal support.

Typically, a separation agreement that requires spousal support to be paid will include some means of limiting the length of time for which support will be payable. Such terms might include:

*a fixed length of time over which support will be paid, after which the payor will have no more responsibility to pay,
*an indefinite amount of time that support will be paid, with one or more dates set for spousal support to be reviewed,
*a series of graduated payments, so that the recipient receives a declining amount of support as he or she re-enters the work force,
*the termination of support if the recipient enters a new spousal relationship, or
*the payment of support in a single, lump sum.

In some situations, of course, permanent support may be required, especially if the relationship was lengthy or if the recipient is unlikely ever to become self-sufficient because of illness, for example.

Some agreements also provide that no spousal support will be payable. If you are the spouse who would ordinarily be entitled to receive support, you need to be pretty confident that the agreement is fair as it may be very difficult to get support later on if your personal circumstances change.

===The division of property and debt===

The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''[[Family Law Act]]'', each spouse is presumed to keep the property he or she brought into the relationship and share in the property bought during the relationship. The spouses are presumed to be each half responsible for any debt incurred during the relationship. However, you can make whatever other arrangements you want, as long as you both agree to those arrangements and they're reasonably fair.

When the division of property and debt are issues, it's often helpful to exchange Financial Statements. A Financial Statement, Form F8 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules], is a helpful court form in which each party describes his or her income, assets, expenses and debts on oath or affirmation, like an affidavit. This form can be very useful for each spouse to get a clear idea of the family's financial situation before negotiations start. You can find links to and examples of a Financial Statement and other forms in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

A separation agreement should talk about how debts will be managed. Separating couples typically pay out family debts by the sale of a shared asset where there's not enough cash to pay it out, which is usually how the mortgage on the family home gets paid out, or they can allocate a different share of the family property to compensate for a family debt that can't be paid out. When a debt won't be paid out, it's essential to do two things: allocate responsibility for the debt; and, provide that the party remaining responsible for the debt will protect the party from having to repay the debt.

===Other issues===

Arrangements for the care of children, the payment of support, and the division of family property and family debts are the most common issues that come up in family law. There are a whole host of other issues that couples may have to deal with, including some that can only be dealt with in separation agreements.

====The parties' future relationship with each other====

Most separation agreements include a whole section devoted to describing how the parties will deal with each other once the agreement is executed. Typically, this portion of an agreement requires the parties, among other things, to:

*not incur debts in the name of the other party,
*not interfere with the personal life of the other party, including interfering with the other party's relationships with his or her parents, family, friends, and future partners, and,
*not molest, harass or annoy the other party.

Some separation agreements will also describe what will happen if the parties reconcile with each other. Most often an agreement will simply say that it becomes a marriage agreement or a cohabitation agreement if the parties reconcile, and that it will not cease to be in effect simply because of the reconciliation.

====Life insurance====

Where children are involved, it can be a good idea to provide that each party will maintain a life insurance policy until the children have all reached the age of majority. Each policy will name the other parent as the sole beneficiary of the policy in trust for the benefit of the children, in order to ensure that the kids will be looked after in the event that either party dies. Most agreements that deal with insurance allow the parties to change the beneficiaries of their policies once the youngest child turns 19.

In general, it's only appropriate to include a term about insurance policies if the parents can afford to pay for those policies.

====Undisclosed assets====

If you have even the slightest doubt that the other party hasn't been entirely forthcoming about the extent of his or her assets, a term governing undisclosed assets can be important. These sorts of terms usually provide that:

*any property that wasn't disclosed when the agreement was executed will automatically be deemed to be owned equally by both parties,
*the party that didn't disclose the asset will have to give the other party one-half of the asset's value, and,
*the party that didn't disclose the asset will have to pay the expenses the other party incurred in finding the asset, plus a financial penalty.

==The effect of reconciliation==

Separation agreements don't always contain special terms providing for the reconciliation of the parties and the resumption of their relationship. But if a couple does reconcile, what happens to their separation agreement? Does the agreement stay in force? What happens if the parties separate again?

The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resume their relationship and live as a couple. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, ''[http://canlii.ca/t/5115 Sydor v. Sydor]'', 2003 CanLII 17626 (ON CA). In that case, the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, notwithstanding a term of the agreement that it is a "full, final and conclusive settlement" of all issues arising from their relationship.

The upshot of all this is that if there's a chance that you and your spouse might get back together, and you want your separation agreement to survive your reconciliation, you must put a term to that effect in your separation agreement. Without it, your agreement may be worthless if you reconcile and the relationship breaks down again at some point afterwards.

==Separation agreements filed in court==

Agreements that are filed in court can be enforced as if they were orders of the court in which they are filed. Among other things, this means that the Family Maintenance Enforcement Program can enforce an agreement for support exactly as it would enforce an order for support.

To find out how to file an agreement, or to see if your agreement has been filed in court, read [[How Do I File an Agreement in Court?]] It's located in the ''How Do I?'' part of this resource under ''Separation Agreements''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtAfterYouSeparate.php Legal Services Society's Family Law Website: Fact sheet on making an agreement after separation]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/whoCanHelpYouReachAnAgmt.php Legal Services Society's Family Law Website: Who can help you reach an agreement?]
* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2, Making Agreements]
*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]
* [http://www.lawsociety.bc.ca/docs/practice/checklists/D-3.pdf Law Society of BC: Separation agreement drafting checklist]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], February 22, 2017}}

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[[Category:Family Law Agreements]]
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[[Category:JP Boyd on Family Law]]

Agreements after Separation

2017-02-23T18:00:36Z

Beatrice McCutcheon: /* Child support */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = more resources dealing with 
|link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements]
}}A separation agreement is a contract that records a settlement of the issues that arise when a married or unmarried relationship ends. Unlike marriage and cohabitation agreements which are made when a relationship starts, separation agreements are made when the relationship is over.

Separation agreements can be an effective and inexpensive way of settling things. However, the terms of the agreement must be fair, and the parties must be able to get along well enough to negotiate the deal and then put it into action when it's done.

This section provides an introduction to separation agreements, discusses how separation agreements are formed, and describes the legal requirements of separation agreements. It also looks at the typical subjects of separation agreements in some detail. In addition, it discusses the effect of reconciliation on separation agreements.

==Introduction==

Every separating couple has three options to resolve the legal issues between them:

#settle the matters between them out of court through negotiation or mediation, or through some other process like arbitration or collaborative settlement processes,
#have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process, or
#give up and just walk away from the mess.

It is almost always better to negotiate and settle a dispute than to begin a court proceeding and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process.

A couple can reach a settlement at any time, even after a court proceeding has started. Typically a settlement reached before a proceeding has begun is put into the form of a separation agreement. Settlements reached after the start of a proceeding can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a ''consent order'', an order that both parties agree the judge should make.

Separation agreements can deal with almost any issue a couple have to address, from who will keep the cats, to how the mortgage will be paid, to how the children's post-secondary education costs will be handled. They also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple.

Of course, separation agreements aren't for everyone. There must be a certain basic amount of mutual trust and good faith, and each party must have a certain flexibility and a willingness to accommodate the other side. A separation agreement will not be appropriate where a couple are so filled with anger, jealousy or stubbornness that even a basic level of mutual respect is absent and dialogue is not possible.

==Alternatives to separation agreements==

Settlement can be reached in a number of different ways before a court proceeding has started, through negotiation, mediation, a collaborative settlement process, or arbitration. Settlements reached in these ways are almost always recorded in the form of a separation agreement.

Settlements reached after a proceeding has started may be recorded as separation agreements if the terms of the settlement are complicated or if there are concerns about whether a term of the settlement can be put into a court order. In that case, the parties may enter into a separation agreement followed by a short consent order that resolves the issues raised in the court proceeding. Otherwise, a settlement of litigation will be recorded as minutes of settlement and a consent order.

====Minutes of settlement====

Minutes of settlement are a written record of the settlement of a court proceeding. They are reached after a court proceeding has begun and are usually used to describe the terms of a consent order, an order that both parties agree the court should make. Both of the lawyers and each of the parties will sign the minutes of settlement; usually only the lawyers will sign the final consent order.

Minutes of settlement sometimes have a rough-and-ready feel to them, as they are usually used to record an often hasty settlement of the legal issues, a settlement that is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less comprehensive than separation agreements. However, even though they lack the same fine-tuning and detail, minutes of settlement are just as binding upon the parties as a separation agreement would be. Both are contracts and can be enforced as such.

Minutes of settlement should:

#be signed by both lawyers and by both parties, although the signature of the parties isn't strictly necessary,
#deal with each significant issue in a final manner, and
#be attached to the draft consent order submitted to the court for its approval.

====Consent orders====

A consent order is an order that both parties agree that a judge should make. Consent orders are only appropriate if litigation has started. It is not necessary to have minutes of settlement done before a consent order is agreed to.

When a judge pronounces an order by consent, the order has just the same effect as a final order reached after a trial and is binding upon the parties as a final order.

====Minutes of settlement and consent orders====

The advantage of minutes of settlement is that the minutes can stand alone as evidence of the written agreement of the parties, while the form of a draft consent order, which may reflect the parties' agreement, still requires the court's approval. Moreover, if the terms of a draft consent order are argued about, there may not be any evidence of the agreement — as would be provided by minutes of settlement — which a court can use to decide the matter.

Consent orders have unique advantages of their own, in that it is usually extremely difficult to vary an order pronounced by consent without a serious and unanticipated change in circumstances, and because such orders are almost impossible to appeal.

===Other final agreements===

Any dispute a couple has can be resolved by a formal contract of some nature. Separation agreements can be made between married spouses or unmarried spouses and deal with a large range of issues, from the care of children to the division of property and debt.

Some couples may only have one issue to resolve and the usual sort of separation agreement isn't required. People who are just parents and never married or cohabited may want a parenting agreement that talks about parental responsibilities and the allocation of parenting time. Couples, including unmarried spouses who lived together for less than two years, who only need to deal with child support and/or spousal support may want a support agreement that deals with either or both issues. Couples who only need to resolve who keeps what property and which debts may want a simple property agreement.

Family law agreements can also involve more people than the people involved in a relationship. Separated parents might sign an agreement for contact with grandparents who want to see their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money.

==Entering into a separation agreement==

A separation agreement can be negotiated and signed at any time after a married or unmarried relationship has broken down. A separation agreement can be signed after a court proceeding has been started or before one has even been considered.

===The basic process===

The process for entering into a separation agreement is fairly simple. The parties discuss the issues resulting from the breakdown of their relationship between themselves (and, hopefully, in consultation with their lawyers as well). They attempt to reach a resolution of each of the legal issues that is as satisfactory to both of them as possible. It's a good idea to take notes and record how each issue is resolved, as these notes may wind up forming the basis for any agreement that might be reached.

The settlement process is a process of negotiation: each party usually has a pretty good idea of how they would like to see things resolved, and then, following the exchange of these ideas, a compromise is reached that represents a blending of the two positions. Once settlement is reached, one of the parties will draw up a formal agreement and give it to the other party. This draft is carefully reviewed to ensure that it accurately reflects the agreement that was reached, to check whether anything was left out, and to make sure that there are no other issues that need to be discussed and included.

Drafting a separation agreement is something that requires a great deal of skill and a solid understanding of family law and contract law. While kits are available that can guide you in drafting an agreement, I highly recommend that you hire a lawyer to deal with the matter when the content of your agreement is anything other than completely straightforward.

Once both parties are content with the text of the agreement, they must each take the agreement to their respective lawyers — or to any lawyer, for that matter — for advice on how the agreement affects their legal rights and the options they may have open to them if they don't sign the agreement. This is called getting ''independent legal advice''. This stage is critical for three reasons:

#If you are entering into an agreement that will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a court proceeding.
#You must understand the obligations and rights you have under the agreement.
#It stops either party from claiming, later on, that he or she didn't know what the agreement meant or that he or she was at a disadvantage because the other party's lawyer drafted the agreement.

After each party has had independent legal advice about the agreement, they will sign the agreement in the presence of a witness if they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement him- or herself.

Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement."

If the parties had legal advice, the lawyer who gave the advice will usually also sign a certificate confirming that: the party received advice as to how the agreement affects his or her legal interests; the party understood the terms of the agreement; and, the party wasn't forced into making the agreement. This is usually called a ''Certificate of Independent Legal Advice''.

Normally, four separate original copies of a separation agreement are executed. This is so that the parties and their lawyers can each have an original copy of the agreement. Sometimes, an extra original copy is executed in case the agreement must be filed in court.

===If you are negotiating an agreement and have a lawyer===

Even if you have a lawyer it can be extremely tempting to work something out with your ex on the side. If you feel even remotely tempted to do so, call your lawyer! Make sure your lawyer knows that you're trying to explore settlement, and make sure you understand what to say and what not to say.

Nothing is quite as frustrating as finding out that a client has negotiated an inadequate or prejudicial agreement without the lawyer's input. While you, the client, are free to do as you want and can arrive at any settlement you wish, be warned that you may find yourself settling for poor terms compared to what your lawyer might have been able to negotiate for you or compared to the results you might have obtained at trial. Remember that you may be stuck with any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one.

Call your lawyer before you sign or initial anything. This is what you're paying her for.

==Formal requirements of separation agreements==

A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord, or the company from which you lease your car. On the other hand, it's a special kind of agreement, different from commercial contracts, because it deals with family law issues that are also discussed in the ''[[Family Law Act]]'' and the ''[[Divorce Act]]''. As a result, the law dealing with separation agreements is a blend of legislation, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts.

The whole point of a separation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, the agreement must be enforceable and it must be able withstand a challenge in court, that is, it must be drafted in such a way and contain terms that are reasonably fair such that a court will uphold the agreement if it is attacked.

A separation agreement must therefore conform to certain basic rules, including these:

*A separation agreement must be in writing.
*The agreement must be signed by each party, and should be signed in the presence of a witness. Although an agreement made without a witness can still be valid and binding, it is a very good idea to have a witness (or witnesses) because she (or they) can confirm that the parties signed the agreement. In addition, sections 94 and 165 of the ''[[Family Law Act]]'' provide that a court cannot make an order about division of property and debt or spousal support that has been dealt with in a written, witnessed agreement between the parties unless the court has set aside the agreement.
*Neither party should be under a legal disability at the time the agreement is signed, however children who are parents or spouses may enter into a binding agreement.
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a proper family law agreement, you might want to think about certain other principles of contract law such as these:

*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
*Both parties must make full and complete disclosure of their circumstances going into the agreement.
*The parties cannot make an illegal bargain, that is, they can't make an agreement that obliges them to do something against the law.
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may be interpreted in favour of the party who didn't have the lawyer.
*The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void.

Family law agreements are also subject to other principles that don't necessarily apply to commercial contracts:

*The parties must make full, complete and honest disclosure of their financial circumstances going into the agreement.
*If one term of a separation agreement is void then, unless the agreement says otherwise, only that term will fail and the rest of the agreement will continue as a valid agreement that is binding on the parties.
*A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement, that is, you can't say the whole agreement has been broken because the other party didn't do something he or she was supposed to do.
*While the parties can later agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force.

Note that the courts will rarely if ever uphold an agreement that attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward his or her children. The court will not consider itself bound by an agreement that says a person will never have to pay child support.

==The possible subjects of a separation agreement==

The potential subjects of a separation agreement are limited only by common sense and what the law will allow. That said, it is always best to be as realistic as possible when drafting a separation agreement. Is a schedule of payments unrealistically difficult for one party? Will the children be able to adapt to a shared parenting arrangement? Are the parties' obligations to one another too complex? Are they too optimistic? Are they affordable? While it is best that all of the issues between the parties be dealt with in a separation agreement, the simpler an agreement is, the better it will usually work in real life.

===Children===

Issues about parenting after separation are covered by the federal ''[[Divorce Act]]'' for married spouses and by the provincial ''[[Family Law Act]]'' for married spouses, unmarried spouses and other unmarried couples, and other people who have an interest in the care of a child.

The ''Divorce Act'' uses some pretty old fashioned language to talk about children, ''custody'' and ''access''. The ''Family Law Act'' talks about people who are the ''guardians'' of a child and have ''parental responsibilities'' and ''parenting time'', and people who are not guardians and have ''contact''.

====Custody and access====

There are two basic types of custody available under the ''Divorce Act'': sole custody and joint custody. Sole custody is less common than it used to be, and is usually only appropriate where the parties are constantly at each other's throats or where one party is or expects to be absent from the child's life. Joint custody is far more common than sole custody. In this situation, both parents are custodians of the children and both have responsibility for making decisions about the children.

Joint custody has little to do with how much time the child spends with each parent. The child's time can be shared equally or almost equally, or the child can see a parent only on weekends, and the parents can still have joint custody.

====Guardianship====

Under s. 39(1) of the ''[[Family Law Act]]'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardian. A parent who has never lived with his or her child isn't a guardian unless the parent "regularly cares" for the child.

Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way, are parents who aren't guardians to begin with — parents who have never lived with the child and have not "regularly cared" for the child.) Someone who is not a parent can't be made a guardian by an agreement.

====Parental responsibilities====

Only a guardian can have parental responsibilities for a child under the ''Family Law Act''. These responsibilities are listed at s. 41:

<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote>
<blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;</tt></blockquote>
<blockquote><tt>(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote>
<blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote>
<blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>

Guardians can share one or more of these parental responsibilities, or one or more parental responsibilities can be allocated just to one guardian, so that only that guardian has responsibility for that issue.

====Parenting time and contact====

Parenting time and contact are both about the child's parenting schedule, although parenting time is about a bit more than just the child's schedule. Only guardians have parenting time; people who aren't guardians have contact with a child.

The terms of a child's parenting schedule can be very specific or, where the parties get along exceptionally well with one another, the terms can be as vague as "Jane will have liberal and generous parenting time with the child."

If there has been a history of difficulty exercising parenting time or contact, or there is even a smidgen of conflict between the parties, it can be important to spell out the child's schedule in more detail to avoid future arguments. The terms of the child's schedule usually spell out when the party will see the child on a week-to-week basis, such as "John will have the child from Friday at the end of school to the following Sunday at 7:00pm, every other week, plus each Wednesday from the end of school until 7:00pm."

Children's schedules can also take into account:

*the child's birthday,
*Mothers' Day and Fathers' Day,
*the parties' birthdays,
*school and religious holidays,
*extended access when there is a civic holiday or a professional development day at school,
*communication by telephone and computer, including email, instant messaging and video conferencing,
*responsibility for picking up and dropping off the child,
*school events,
*the child's extracurricular activities, and
*birthdays of the child's friends.

===Child support===

Child support is a monthly sum, paid by the parent who has the child for the least amount of time, the ''payor'', to the parent who has the child for the most amount of time, to help cover the day-to-day living expenses of the child. Child support may also be paid when the parents share parenting time with the child more or less equally but there is a difference between the parents' incomes. The amount of child support that is paid is almost always dealt with by referring to the [[Child Support Guidelines]], which set out the amount of a parent's child support obligation according to the number of children support is being paid for and the payor's income.

A good separation agreement will:

#state the income of each parent at the time the agreement is made,
#state the monthly child support to be paid,
#set up a system that requires the parties to exchange copies of their tax returns and Canada Revenue Agency notices of assessment each year or every other year,
#provide for a review of child support if the payor's income rises or falls, and
#provide for the recalculation of the parties' shares of the cost of the child's special expenses if either party's income rises or falls.

The Guidelines are an extremely convenient way to calculate a party's child support obligations up to the point where the spouse paying support, the ''payor'', has parenting time with the child for 39% or less of the time. Once the payor has 40% or more of the child's time, the Guidelines tables become less important, and child support is assessed based on, among other things, each party's income and the amount of expenses related to the child that each party is paying. In the context of separation agreements, this allows for a little more flexibility in determining child support, but makes the annual exchange of financial information even more important.

===Spousal support===

Spousal support is paid by one spouse to the other to help cover that person's day-to-day living expenses. A separation agreement that provides for the payment of spousal support should be negotiated bearing in mind all of the things the court would have considered in making an order for spousal support.

Typically, a separation agreement that requires spousal support to be paid will include some means of limiting the length of time for which support will be payable. Such terms might include:

*a fixed length of time over which support will be paid, after which the payor will have no more responsibility to pay,
*an indefinite amount of time that support will be paid, with one or more dates set for spousal support to be reviewed,
*a series of graduated payments, so that the recipient receives a declining amount of support as he or she re-enters the work force,
*the termination of support if the recipient enters a new spousal relationship, or
*the payment of support in a single, lump sum.

In some situations, of course, permanent support may be required, especially if the relationship was lengthy or if the recipient is unlikely ever to become self-sufficient because of illness, for example.

Some agreements also provide that no spousal support will be payable. If you are the spouse who would ordinarily be entitled to receive support, you need to be pretty confident that the agreement is fair as it may be very difficult to get support later on if your personal circumstances change.

===The division of property and debt===

The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''[[Family Law Act]]'', each spouse is presumed to keep the property he or she brought into the relationship and share in the property bought during the relationship. The spouses are presumed to be each half responsible for any debt incurred during the relationship. However, you can make whatever other arrangements you want, as long as you both agree to those arrangements and they're reasonably fair.

When the division of property and debt are issues, it's often helpful to exchange Financial Statements. A Financial Statement, Form F8 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules], is a helpful court form in which each party describes his or her income, assets, expenses and debts on oath or affirmation, like an affidavit. This form can be very useful for each spouse to get a clear idea of the family's financial situation before negotiations start. You can find links to and examples of a Financial Statement and other forms in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

A separation agreement should talk about how debts will be managed. Separating couples typically pay out family debts by the sale of a shared asset where there's not enough cash to pay it out, which is usually how the mortgage on the family home gets paid out, or they can allocate a different share of the family property to compensate for a family debt that can't be paid out. When a debt won't be paid out, it's essential to do two things: allocate responsibility for the debt; and, provide that the party remaining responsible for the debt will protect the party from having to repay the debt.

===Other issues===

Arrangements for the care of children, the payment of support, and the division of family property and family debts are the most common issues that come up in family law. There are a whole host of other issues that couples may have to deal with, including some that can only be dealt with in separation agreements.

====The parties' future relationship with each other====

Most separation agreements include a whole section devoted to describing how the parties will deal with each other once the agreement is executed. Typically, this portion of an agreement requires the parties, among other things, to:

*not incur debts in the name of the other party,
*not interfere with the personal life of the other party, including interfering with the other party's relationships with his or her parents, family, friends, and future partners, and,
*not molest, harass or annoy the other party.

Some separation agreements will also describe what will happen if the parties reconcile with each other. Most often an agreement will simply say that it becomes a marriage agreement or a cohabitation agreement if the parties reconcile, and that it will not cease to be in effect simply because of the reconciliation.

====Life insurance====

Where children are involved, it can be a good idea to provide that each party will maintain a life insurance policy until the children have all reached the age of majority. Each policy will name the other parent as the sole beneficiary of the policy in trust for the benefit of the children, in order to ensure that the kids will be looked after in the event that either party dies. Most agreements that deal with insurance allow the parties to change the beneficiaries of their policies once the youngest child turns 19.

In general, it's only appropriate to include a term about insurance policies if the parents can afford to pay for those policies.

====Undisclosed assets====

If you have even the slightest doubt that the other party hasn't been entirely forthcoming about the extent of his or her assets, a term governing undisclosed assets can be important. These sorts of terms usually provide that:

*any property that wasn't disclosed when the agreement was executed will automatically be deemed to be owned equally by both parties,
*the party that didn't disclose the asset will have to give the other party one-half of the asset's value, and,
*the party that didn't disclose the asset will have to pay the expenses the other party incurred in finding the asset, plus a financial penalty.

==The effect of reconciliation==

Separation agreements don't always contain special terms providing for the reconciliation of the parties and the resumption of their relationship. But if a couple does reconcile, what happens to their separation agreement? Does the agreement stay in force? What happens if the parties separate again?

The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resume their relationship and live as a couple. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, ''[http://canlii.ca/t/5115 Sydor v. Sydor]'', 2003 CanLII 17626 (ON CA). In that case, the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, notwithstanding a term of the agreement that it is a "full, final and conclusive settlement" of all issues arising from their relationship.

The upshot of all this is that if there's a chance that you and your spouse might get back together, and you want your separation agreement to survive your reconciliation, you must put a term to that effect in your separation agreement. Without it, your agreement may be worthless if you reconcile and the relationship breaks down again at some point afterwards.

==Separation agreements filed in court==

Agreements that are filed in court can be enforced as if they were orders of the court in which they are filed. Among other things, this means that the Family Maintenance Enforcement Program can enforce an agreement for support exactly as it would enforce an order for support.

To find out how to file an agreement, or to see if your agreement has been filed in court, read [[How Do I File an Agreement in Court?]] It's located in the ''How Do I?'' part of this resource under ''Separation Agreements''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtAfterYouSeparate.php Legal Services Society's Family Law Website: Fact sheet on making an agreement after separation]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/whoCanHelpYouReachAnAgmt.php Legal Services Society's Family Law Website: Who can help you reach an agreement?]
* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2, Making Agreements]
*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]
* [http://www.lawsociety.bc.ca/docs/practice/checklists/D-3.pdf Law Society of BC: Separation agreement drafting checklist]

{{REVIEWED | reviewer = [[Barbara Nelson]] and [[Beatrice McCutcheon]], September 17, 2014}}

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[[Category:Family Law Agreements]]
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[[Category:JP Boyd on Family Law]]

Agreements after Separation

2017-02-23T17:44:02Z

Beatrice McCutcheon: /* Child support */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = more resources dealing with 
|link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements]
}}A separation agreement is a contract that records a settlement of the issues that arise when a married or unmarried relationship ends. Unlike marriage and cohabitation agreements which are made when a relationship starts, separation agreements are made when the relationship is over.

Separation agreements can be an effective and inexpensive way of settling things. However, the terms of the agreement must be fair, and the parties must be able to get along well enough to negotiate the deal and then put it into action when it's done.

This section provides an introduction to separation agreements, discusses how separation agreements are formed, and describes the legal requirements of separation agreements. It also looks at the typical subjects of separation agreements in some detail. In addition, it discusses the effect of reconciliation on separation agreements.

==Introduction==

Every separating couple has three options to resolve the legal issues between them:

#settle the matters between them out of court through negotiation or mediation, or through some other process like arbitration or collaborative settlement processes,
#have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process, or
#give up and just walk away from the mess.

It is almost always better to negotiate and settle a dispute than to begin a court proceeding and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process.

A couple can reach a settlement at any time, even after a court proceeding has started. Typically a settlement reached before a proceeding has begun is put into the form of a separation agreement. Settlements reached after the start of a proceeding can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a ''consent order'', an order that both parties agree the judge should make.

Separation agreements can deal with almost any issue a couple have to address, from who will keep the cats, to how the mortgage will be paid, to how the children's post-secondary education costs will be handled. They also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple.

Of course, separation agreements aren't for everyone. There must be a certain basic amount of mutual trust and good faith, and each party must have a certain flexibility and a willingness to accommodate the other side. A separation agreement will not be appropriate where a couple are so filled with anger, jealousy or stubbornness that even a basic level of mutual respect is absent and dialogue is not possible.

==Alternatives to separation agreements==

Settlement can be reached in a number of different ways before a court proceeding has started, through negotiation, mediation, a collaborative settlement process, or arbitration. Settlements reached in these ways are almost always recorded in the form of a separation agreement.

Settlements reached after a proceeding has started may be recorded as separation agreements if the terms of the settlement are complicated or if there are concerns about whether a term of the settlement can be put into a court order. In that case, the parties may enter into a separation agreement followed by a short consent order that resolves the issues raised in the court proceeding. Otherwise, a settlement of litigation will be recorded as minutes of settlement and a consent order.

====Minutes of settlement====

Minutes of settlement are a written record of the settlement of a court proceeding. They are reached after a court proceeding has begun and are usually used to describe the terms of a consent order, an order that both parties agree the court should make. Both of the lawyers and each of the parties will sign the minutes of settlement; usually only the lawyers will sign the final consent order.

Minutes of settlement sometimes have a rough-and-ready feel to them, as they are usually used to record an often hasty settlement of the legal issues, a settlement that is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less comprehensive than separation agreements. However, even though they lack the same fine-tuning and detail, minutes of settlement are just as binding upon the parties as a separation agreement would be. Both are contracts and can be enforced as such.

Minutes of settlement should:

#be signed by both lawyers and by both parties, although the signature of the parties isn't strictly necessary,
#deal with each significant issue in a final manner, and
#be attached to the draft consent order submitted to the court for its approval.

====Consent orders====

A consent order is an order that both parties agree that a judge should make. Consent orders are only appropriate if litigation has started. It is not necessary to have minutes of settlement done before a consent order is agreed to.

When a judge pronounces an order by consent, the order has just the same effect as a final order reached after a trial and is binding upon the parties as a final order.

====Minutes of settlement and consent orders====

The advantage of minutes of settlement is that the minutes can stand alone as evidence of the written agreement of the parties, while the form of a draft consent order, which may reflect the parties' agreement, still requires the court's approval. Moreover, if the terms of a draft consent order are argued about, there may not be any evidence of the agreement — as would be provided by minutes of settlement — which a court can use to decide the matter.

Consent orders have unique advantages of their own, in that it is usually extremely difficult to vary an order pronounced by consent without a serious and unanticipated change in circumstances, and because such orders are almost impossible to appeal.

===Other final agreements===

Any dispute a couple has can be resolved by a formal contract of some nature. Separation agreements can be made between married spouses or unmarried spouses and deal with a large range of issues, from the care of children to the division of property and debt.

Some couples may only have one issue to resolve and the usual sort of separation agreement isn't required. People who are just parents and never married or cohabited may want a parenting agreement that talks about parental responsibilities and the allocation of parenting time. Couples, including unmarried spouses who lived together for less than two years, who only need to deal with child support and/or spousal support may want a support agreement that deals with either or both issues. Couples who only need to resolve who keeps what property and which debts may want a simple property agreement.

Family law agreements can also involve more people than the people involved in a relationship. Separated parents might sign an agreement for contact with grandparents who want to see their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money.

==Entering into a separation agreement==

A separation agreement can be negotiated and signed at any time after a married or unmarried relationship has broken down. A separation agreement can be signed after a court proceeding has been started or before one has even been considered.

===The basic process===

The process for entering into a separation agreement is fairly simple. The parties discuss the issues resulting from the breakdown of their relationship between themselves (and, hopefully, in consultation with their lawyers as well). They attempt to reach a resolution of each of the legal issues that is as satisfactory to both of them as possible. It's a good idea to take notes and record how each issue is resolved, as these notes may wind up forming the basis for any agreement that might be reached.

The settlement process is a process of negotiation: each party usually has a pretty good idea of how they would like to see things resolved, and then, following the exchange of these ideas, a compromise is reached that represents a blending of the two positions. Once settlement is reached, one of the parties will draw up a formal agreement and give it to the other party. This draft is carefully reviewed to ensure that it accurately reflects the agreement that was reached, to check whether anything was left out, and to make sure that there are no other issues that need to be discussed and included.

Drafting a separation agreement is something that requires a great deal of skill and a solid understanding of family law and contract law. While kits are available that can guide you in drafting an agreement, I highly recommend that you hire a lawyer to deal with the matter when the content of your agreement is anything other than completely straightforward.

Once both parties are content with the text of the agreement, they must each take the agreement to their respective lawyers — or to any lawyer, for that matter — for advice on how the agreement affects their legal rights and the options they may have open to them if they don't sign the agreement. This is called getting ''independent legal advice''. This stage is critical for three reasons:

#If you are entering into an agreement that will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a court proceeding.
#You must understand the obligations and rights you have under the agreement.
#It stops either party from claiming, later on, that he or she didn't know what the agreement meant or that he or she was at a disadvantage because the other party's lawyer drafted the agreement.

After each party has had independent legal advice about the agreement, they will sign the agreement in the presence of a witness if they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement him- or herself.

Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement."

If the parties had legal advice, the lawyer who gave the advice will usually also sign a certificate confirming that: the party received advice as to how the agreement affects his or her legal interests; the party understood the terms of the agreement; and, the party wasn't forced into making the agreement. This is usually called a ''Certificate of Independent Legal Advice''.

Normally, four separate original copies of a separation agreement are executed. This is so that the parties and their lawyers can each have an original copy of the agreement. Sometimes, an extra original copy is executed in case the agreement must be filed in court.

===If you are negotiating an agreement and have a lawyer===

Even if you have a lawyer it can be extremely tempting to work something out with your ex on the side. If you feel even remotely tempted to do so, call your lawyer! Make sure your lawyer knows that you're trying to explore settlement, and make sure you understand what to say and what not to say.

Nothing is quite as frustrating as finding out that a client has negotiated an inadequate or prejudicial agreement without the lawyer's input. While you, the client, are free to do as you want and can arrive at any settlement you wish, be warned that you may find yourself settling for poor terms compared to what your lawyer might have been able to negotiate for you or compared to the results you might have obtained at trial. Remember that you may be stuck with any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one.

Call your lawyer before you sign or initial anything. This is what you're paying her for.

==Formal requirements of separation agreements==

A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord, or the company from which you lease your car. On the other hand, it's a special kind of agreement, different from commercial contracts, because it deals with family law issues that are also discussed in the ''[[Family Law Act]]'' and the ''[[Divorce Act]]''. As a result, the law dealing with separation agreements is a blend of legislation, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts.

The whole point of a separation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, the agreement must be enforceable and it must be able withstand a challenge in court, that is, it must be drafted in such a way and contain terms that are reasonably fair such that a court will uphold the agreement if it is attacked.

A separation agreement must therefore conform to certain basic rules, including these:

*A separation agreement must be in writing.
*The agreement must be signed by each party, and should be signed in the presence of a witness. Although an agreement made without a witness can still be valid and binding, it is a very good idea to have a witness (or witnesses) because she (or they) can confirm that the parties signed the agreement. In addition, sections 94 and 165 of the ''[[Family Law Act]]'' provide that a court cannot make an order about division of property and debt or spousal support that has been dealt with in a written, witnessed agreement between the parties unless the court has set aside the agreement.
*Neither party should be under a legal disability at the time the agreement is signed, however children who are parents or spouses may enter into a binding agreement.
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a proper family law agreement, you might want to think about certain other principles of contract law such as these:

*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
*Both parties must make full and complete disclosure of their circumstances going into the agreement.
*The parties cannot make an illegal bargain, that is, they can't make an agreement that obliges them to do something against the law.
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may be interpreted in favour of the party who didn't have the lawyer.
*The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void.

Family law agreements are also subject to other principles that don't necessarily apply to commercial contracts:

*The parties must make full, complete and honest disclosure of their financial circumstances going into the agreement.
*If one term of a separation agreement is void then, unless the agreement says otherwise, only that term will fail and the rest of the agreement will continue as a valid agreement that is binding on the parties.
*A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement, that is, you can't say the whole agreement has been broken because the other party didn't do something he or she was supposed to do.
*While the parties can later agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force.

Note that the courts will rarely if ever uphold an agreement that attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward his or her children. The court will not consider itself bound by an agreement that says a person will never have to pay child support.

==The possible subjects of a separation agreement==

The potential subjects of a separation agreement are limited only by common sense and what the law will allow. That said, it is always best to be as realistic as possible when drafting a separation agreement. Is a schedule of payments unrealistically difficult for one party? Will the children be able to adapt to a shared parenting arrangement? Are the parties' obligations to one another too complex? Are they too optimistic? Are they affordable? While it is best that all of the issues between the parties be dealt with in a separation agreement, the simpler an agreement is, the better it will usually work in real life.

===Children===

Issues about parenting after separation are covered by the federal ''[[Divorce Act]]'' for married spouses and by the provincial ''[[Family Law Act]]'' for married spouses, unmarried spouses and other unmarried couples, and other people who have an interest in the care of a child.

The ''Divorce Act'' uses some pretty old fashioned language to talk about children, ''custody'' and ''access''. The ''Family Law Act'' talks about people who are the ''guardians'' of a child and have ''parental responsibilities'' and ''parenting time'', and people who are not guardians and have ''contact''.

====Custody and access====

There are two basic types of custody available under the ''Divorce Act'': sole custody and joint custody. Sole custody is less common than it used to be, and is usually only appropriate where the parties are constantly at each other's throats or where one party is or expects to be absent from the child's life. Joint custody is far more common than sole custody. In this situation, both parents are custodians of the children and both have responsibility for making decisions about the children.

Joint custody has little to do with how much time the child spends with each parent. The child's time can be shared equally or almost equally, or the child can see a parent only on weekends, and the parents can still have joint custody.

====Guardianship====

Under s. 39(1) of the ''[[Family Law Act]]'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardian. A parent who has never lived with his or her child isn't a guardian unless the parent "regularly cares" for the child.

Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way, are parents who aren't guardians to begin with — parents who have never lived with the child and have not "regularly cared" for the child.) Someone who is not a parent can't be made a guardian by an agreement.

====Parental responsibilities====

Only a guardian can have parental responsibilities for a child under the ''Family Law Act''. These responsibilities are listed at s. 41:

<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote>
<blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;</tt></blockquote>
<blockquote><tt>(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote>
<blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote>
<blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>

Guardians can share one or more of these parental responsibilities, or one or more parental responsibilities can be allocated just to one guardian, so that only that guardian has responsibility for that issue.

====Parenting time and contact====

Parenting time and contact are both about the child's parenting schedule, although parenting time is about a bit more than just the child's schedule. Only guardians have parenting time; people who aren't guardians have contact with a child.

The terms of a child's parenting schedule can be very specific or, where the parties get along exceptionally well with one another, the terms can be as vague as "Jane will have liberal and generous parenting time with the child."

If there has been a history of difficulty exercising parenting time or contact, or there is even a smidgen of conflict between the parties, it can be important to spell out the child's schedule in more detail to avoid future arguments. The terms of the child's schedule usually spell out when the party will see the child on a week-to-week basis, such as "John will have the child from Friday at the end of school to the following Sunday at 7:00pm, every other week, plus each Wednesday from the end of school until 7:00pm."

Children's schedules can also take into account:

*the child's birthday,
*Mothers' Day and Fathers' Day,
*the parties' birthdays,
*school and religious holidays,
*extended access when there is a civic holiday or a professional development day at school,
*communication by telephone and computer, including email, instant messaging and video conferencing,
*responsibility for picking up and dropping off the child,
*school events,
*the child's extracurricular activities, and
*birthdays of the child's friends.

===Child support===

Child support is a monthly sum, paid by the parent who has the child for the least amount of time, the ''payor'', to the parent who has the child for the most amount of time, to help cover the day-to-day living expenses of the child. Child support may also be paid when the parents have equal time with the child but there is a difference between the parents' incomes. The amount of child support that is paid is almost always dealt with by referring to the [[Child Support Guidelines]], which set out the amount of a parent's child support obligation according to the number of children support is being paid for and the payor's income.

A good separation agreement will:

#state the income of each parent at the time the agreement is made,
#state the monthly child support to be paid,
#set up a system that requires the parties to exchange copies of their tax returns and Canada Revenue Agency notices of assessment each year or every other year,
#provide for a review of child support if the payor's income rises or falls, and
#provide for the recalculation of the parties' shares of the cost of the child's special expenses if either party's income rises or falls.

The Guidelines are an extremely convenient way to calculate a party's child support obligations up to the point where the spouse paying support, the ''payor'', has access to the child for 39% or less of the time. Once the payor has 40% or more of the child's time, the Guidelines tables become less important, and child support is assessed based on, among other things, each party's income and the amount of expenses related to the child that each party is paying. In the context of separation agreements, this allows for a little more flexibility in determining child support, but makes the annual exchange of financial information even more important.

===Spousal support===

Spousal support is paid by one spouse to the other to help cover that person's day-to-day living expenses. A separation agreement that provides for the payment of spousal support should be negotiated bearing in mind all of the things the court would have considered in making an order for spousal support.

Typically, a separation agreement that requires spousal support to be paid will include some means of limiting the length of time for which support will be payable. Such terms might include:

*a fixed length of time over which support will be paid, after which the payor will have no more responsibility to pay,
*an indefinite amount of time that support will be paid, with one or more dates set for spousal support to be reviewed,
*a series of graduated payments, so that the recipient receives a declining amount of support as he or she re-enters the work force,
*the termination of support if the recipient enters a new spousal relationship, or
*the payment of support in a single, lump sum.

In some situations, of course, permanent support may be required, especially if the relationship was lengthy or if the recipient is unlikely ever to become self-sufficient because of illness, for example.

Some agreements also provide that no spousal support will be payable. If you are the spouse who would ordinarily be entitled to receive support, you need to be pretty confident that the agreement is fair as it may be very difficult to get support later on if your personal circumstances change.

===The division of property and debt===

The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''[[Family Law Act]]'', each spouse is presumed to keep the property he or she brought into the relationship and share in the property bought during the relationship. The spouses are presumed to be each half responsible for any debt incurred during the relationship. However, you can make whatever other arrangements you want, as long as you both agree to those arrangements and they're reasonably fair.

When the division of property and debt are issues, it's often helpful to exchange Financial Statements. A Financial Statement, Form F8 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules], is a helpful court form in which each party describes his or her income, assets, expenses and debts on oath or affirmation, like an affidavit. This form can be very useful for each spouse to get a clear idea of the family's financial situation before negotiations start. You can find links to and examples of a Financial Statement and other forms in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

A separation agreement should talk about how debts will be managed. Separating couples typically pay out family debts by the sale of a shared asset where there's not enough cash to pay it out, which is usually how the mortgage on the family home gets paid out, or they can allocate a different share of the family property to compensate for a family debt that can't be paid out. When a debt won't be paid out, it's essential to do two things: allocate responsibility for the debt; and, provide that the party remaining responsible for the debt will protect the party from having to repay the debt.

===Other issues===

Arrangements for the care of children, the payment of support, and the division of family property and family debts are the most common issues that come up in family law. There are a whole host of other issues that couples may have to deal with, including some that can only be dealt with in separation agreements.

====The parties' future relationship with each other====

Most separation agreements include a whole section devoted to describing how the parties will deal with each other once the agreement is executed. Typically, this portion of an agreement requires the parties, among other things, to:

*not incur debts in the name of the other party,
*not interfere with the personal life of the other party, including interfering with the other party's relationships with his or her parents, family, friends, and future partners, and,
*not molest, harass or annoy the other party.

Some separation agreements will also describe what will happen if the parties reconcile with each other. Most often an agreement will simply say that it becomes a marriage agreement or a cohabitation agreement if the parties reconcile, and that it will not cease to be in effect simply because of the reconciliation.

====Life insurance====

Where children are involved, it can be a good idea to provide that each party will maintain a life insurance policy until the children have all reached the age of majority. Each policy will name the other parent as the sole beneficiary of the policy in trust for the benefit of the children, in order to ensure that the kids will be looked after in the event that either party dies. Most agreements that deal with insurance allow the parties to change the beneficiaries of their policies once the youngest child turns 19.

In general, it's only appropriate to include a term about insurance policies if the parents can afford to pay for those policies.

====Undisclosed assets====

If you have even the slightest doubt that the other party hasn't been entirely forthcoming about the extent of his or her assets, a term governing undisclosed assets can be important. These sorts of terms usually provide that:

*any property that wasn't disclosed when the agreement was executed will automatically be deemed to be owned equally by both parties,
*the party that didn't disclose the asset will have to give the other party one-half of the asset's value, and,
*the party that didn't disclose the asset will have to pay the expenses the other party incurred in finding the asset, plus a financial penalty.

==The effect of reconciliation==

Separation agreements don't always contain special terms providing for the reconciliation of the parties and the resumption of their relationship. But if a couple does reconcile, what happens to their separation agreement? Does the agreement stay in force? What happens if the parties separate again?

The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resume their relationship and live as a couple. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, ''[http://canlii.ca/t/5115 Sydor v. Sydor]'', 2003 CanLII 17626 (ON CA). In that case, the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, notwithstanding a term of the agreement that it is a "full, final and conclusive settlement" of all issues arising from their relationship.

The upshot of all this is that if there's a chance that you and your spouse might get back together, and you want your separation agreement to survive your reconciliation, you must put a term to that effect in your separation agreement. Without it, your agreement may be worthless if you reconcile and the relationship breaks down again at some point afterwards.

==Separation agreements filed in court==

Agreements that are filed in court can be enforced as if they were orders of the court in which they are filed. Among other things, this means that the Family Maintenance Enforcement Program can enforce an agreement for support exactly as it would enforce an order for support.

To find out how to file an agreement, or to see if your agreement has been filed in court, read [[How Do I File an Agreement in Court?]] It's located in the ''How Do I?'' part of this resource under ''Separation Agreements''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtAfterYouSeparate.php Legal Services Society's Family Law Website: Fact sheet on making an agreement after separation]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/whoCanHelpYouReachAnAgmt.php Legal Services Society's Family Law Website: Who can help you reach an agreement?]
* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2, Making Agreements]
*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]
* [http://www.lawsociety.bc.ca/docs/practice/checklists/D-3.pdf Law Society of BC: Separation agreement drafting checklist]

{{REVIEWED | reviewer = [[Barbara Nelson]] and [[Beatrice McCutcheon]], September 17, 2014}}

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[[Category:JP Boyd on Family Law]]

Agreements after Separation

2017-02-23T17:42:24Z

Beatrice McCutcheon: /* Formal requirements of separation agreements */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = more resources dealing with 
|link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements]
}}A separation agreement is a contract that records a settlement of the issues that arise when a married or unmarried relationship ends. Unlike marriage and cohabitation agreements which are made when a relationship starts, separation agreements are made when the relationship is over.

Separation agreements can be an effective and inexpensive way of settling things. However, the terms of the agreement must be fair, and the parties must be able to get along well enough to negotiate the deal and then put it into action when it's done.

This section provides an introduction to separation agreements, discusses how separation agreements are formed, and describes the legal requirements of separation agreements. It also looks at the typical subjects of separation agreements in some detail. In addition, it discusses the effect of reconciliation on separation agreements.

==Introduction==

Every separating couple has three options to resolve the legal issues between them:

#settle the matters between them out of court through negotiation or mediation, or through some other process like arbitration or collaborative settlement processes,
#have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process, or
#give up and just walk away from the mess.

It is almost always better to negotiate and settle a dispute than to begin a court proceeding and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process.

A couple can reach a settlement at any time, even after a court proceeding has started. Typically a settlement reached before a proceeding has begun is put into the form of a separation agreement. Settlements reached after the start of a proceeding can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a ''consent order'', an order that both parties agree the judge should make.

Separation agreements can deal with almost any issue a couple have to address, from who will keep the cats, to how the mortgage will be paid, to how the children's post-secondary education costs will be handled. They also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple.

Of course, separation agreements aren't for everyone. There must be a certain basic amount of mutual trust and good faith, and each party must have a certain flexibility and a willingness to accommodate the other side. A separation agreement will not be appropriate where a couple are so filled with anger, jealousy or stubbornness that even a basic level of mutual respect is absent and dialogue is not possible.

==Alternatives to separation agreements==

Settlement can be reached in a number of different ways before a court proceeding has started, through negotiation, mediation, a collaborative settlement process, or arbitration. Settlements reached in these ways are almost always recorded in the form of a separation agreement.

Settlements reached after a proceeding has started may be recorded as separation agreements if the terms of the settlement are complicated or if there are concerns about whether a term of the settlement can be put into a court order. In that case, the parties may enter into a separation agreement followed by a short consent order that resolves the issues raised in the court proceeding. Otherwise, a settlement of litigation will be recorded as minutes of settlement and a consent order.

====Minutes of settlement====

Minutes of settlement are a written record of the settlement of a court proceeding. They are reached after a court proceeding has begun and are usually used to describe the terms of a consent order, an order that both parties agree the court should make. Both of the lawyers and each of the parties will sign the minutes of settlement; usually only the lawyers will sign the final consent order.

Minutes of settlement sometimes have a rough-and-ready feel to them, as they are usually used to record an often hasty settlement of the legal issues, a settlement that is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less comprehensive than separation agreements. However, even though they lack the same fine-tuning and detail, minutes of settlement are just as binding upon the parties as a separation agreement would be. Both are contracts and can be enforced as such.

Minutes of settlement should:

#be signed by both lawyers and by both parties, although the signature of the parties isn't strictly necessary,
#deal with each significant issue in a final manner, and
#be attached to the draft consent order submitted to the court for its approval.

====Consent orders====

A consent order is an order that both parties agree that a judge should make. Consent orders are only appropriate if litigation has started. It is not necessary to have minutes of settlement done before a consent order is agreed to.

When a judge pronounces an order by consent, the order has just the same effect as a final order reached after a trial and is binding upon the parties as a final order.

====Minutes of settlement and consent orders====

The advantage of minutes of settlement is that the minutes can stand alone as evidence of the written agreement of the parties, while the form of a draft consent order, which may reflect the parties' agreement, still requires the court's approval. Moreover, if the terms of a draft consent order are argued about, there may not be any evidence of the agreement — as would be provided by minutes of settlement — which a court can use to decide the matter.

Consent orders have unique advantages of their own, in that it is usually extremely difficult to vary an order pronounced by consent without a serious and unanticipated change in circumstances, and because such orders are almost impossible to appeal.

===Other final agreements===

Any dispute a couple has can be resolved by a formal contract of some nature. Separation agreements can be made between married spouses or unmarried spouses and deal with a large range of issues, from the care of children to the division of property and debt.

Some couples may only have one issue to resolve and the usual sort of separation agreement isn't required. People who are just parents and never married or cohabited may want a parenting agreement that talks about parental responsibilities and the allocation of parenting time. Couples, including unmarried spouses who lived together for less than two years, who only need to deal with child support and/or spousal support may want a support agreement that deals with either or both issues. Couples who only need to resolve who keeps what property and which debts may want a simple property agreement.

Family law agreements can also involve more people than the people involved in a relationship. Separated parents might sign an agreement for contact with grandparents who want to see their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money.

==Entering into a separation agreement==

A separation agreement can be negotiated and signed at any time after a married or unmarried relationship has broken down. A separation agreement can be signed after a court proceeding has been started or before one has even been considered.

===The basic process===

The process for entering into a separation agreement is fairly simple. The parties discuss the issues resulting from the breakdown of their relationship between themselves (and, hopefully, in consultation with their lawyers as well). They attempt to reach a resolution of each of the legal issues that is as satisfactory to both of them as possible. It's a good idea to take notes and record how each issue is resolved, as these notes may wind up forming the basis for any agreement that might be reached.

The settlement process is a process of negotiation: each party usually has a pretty good idea of how they would like to see things resolved, and then, following the exchange of these ideas, a compromise is reached that represents a blending of the two positions. Once settlement is reached, one of the parties will draw up a formal agreement and give it to the other party. This draft is carefully reviewed to ensure that it accurately reflects the agreement that was reached, to check whether anything was left out, and to make sure that there are no other issues that need to be discussed and included.

Drafting a separation agreement is something that requires a great deal of skill and a solid understanding of family law and contract law. While kits are available that can guide you in drafting an agreement, I highly recommend that you hire a lawyer to deal with the matter when the content of your agreement is anything other than completely straightforward.

Once both parties are content with the text of the agreement, they must each take the agreement to their respective lawyers — or to any lawyer, for that matter — for advice on how the agreement affects their legal rights and the options they may have open to them if they don't sign the agreement. This is called getting ''independent legal advice''. This stage is critical for three reasons:

#If you are entering into an agreement that will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a court proceeding.
#You must understand the obligations and rights you have under the agreement.
#It stops either party from claiming, later on, that he or she didn't know what the agreement meant or that he or she was at a disadvantage because the other party's lawyer drafted the agreement.

After each party has had independent legal advice about the agreement, they will sign the agreement in the presence of a witness if they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement him- or herself.

Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement."

If the parties had legal advice, the lawyer who gave the advice will usually also sign a certificate confirming that: the party received advice as to how the agreement affects his or her legal interests; the party understood the terms of the agreement; and, the party wasn't forced into making the agreement. This is usually called a ''Certificate of Independent Legal Advice''.

Normally, four separate original copies of a separation agreement are executed. This is so that the parties and their lawyers can each have an original copy of the agreement. Sometimes, an extra original copy is executed in case the agreement must be filed in court.

===If you are negotiating an agreement and have a lawyer===

Even if you have a lawyer it can be extremely tempting to work something out with your ex on the side. If you feel even remotely tempted to do so, call your lawyer! Make sure your lawyer knows that you're trying to explore settlement, and make sure you understand what to say and what not to say.

Nothing is quite as frustrating as finding out that a client has negotiated an inadequate or prejudicial agreement without the lawyer's input. While you, the client, are free to do as you want and can arrive at any settlement you wish, be warned that you may find yourself settling for poor terms compared to what your lawyer might have been able to negotiate for you or compared to the results you might have obtained at trial. Remember that you may be stuck with any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one.

Call your lawyer before you sign or initial anything. This is what you're paying her for.

==Formal requirements of separation agreements==

A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord, or the company from which you lease your car. On the other hand, it's a special kind of agreement, different from commercial contracts, because it deals with family law issues that are also discussed in the ''[[Family Law Act]]'' and the ''[[Divorce Act]]''. As a result, the law dealing with separation agreements is a blend of legislation, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts.

The whole point of a separation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, the agreement must be enforceable and it must be able withstand a challenge in court, that is, it must be drafted in such a way and contain terms that are reasonably fair such that a court will uphold the agreement if it is attacked.

A separation agreement must therefore conform to certain basic rules, including these:

*A separation agreement must be in writing.
*The agreement must be signed by each party, and should be signed in the presence of a witness. Although an agreement made without a witness can still be valid and binding, it is a very good idea to have a witness (or witnesses) because she (or they) can confirm that the parties signed the agreement. In addition, sections 94 and 165 of the ''[[Family Law Act]]'' provide that a court cannot make an order about division of property and debt or spousal support that has been dealt with in a written, witnessed agreement between the parties unless the court has set aside the agreement.
*Neither party should be under a legal disability at the time the agreement is signed, however children who are parents or spouses may enter into a binding agreement.
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a proper family law agreement, you might want to think about certain other principles of contract law such as these:

*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
*Both parties must make full and complete disclosure of their circumstances going into the agreement.
*The parties cannot make an illegal bargain, that is, they can't make an agreement that obliges them to do something against the law.
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may be interpreted in favour of the party who didn't have the lawyer.
*The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void.

Family law agreements are also subject to other principles that don't necessarily apply to commercial contracts:

*The parties must make full, complete and honest disclosure of their financial circumstances going into the agreement.
*If one term of a separation agreement is void then, unless the agreement says otherwise, only that term will fail and the rest of the agreement will continue as a valid agreement that is binding on the parties.
*A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement, that is, you can't say the whole agreement has been broken because the other party didn't do something he or she was supposed to do.
*While the parties can later agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force.

Note that the courts will rarely if ever uphold an agreement that attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward his or her children. The court will not consider itself bound by an agreement that says a person will never have to pay child support.

==The possible subjects of a separation agreement==

The potential subjects of a separation agreement are limited only by common sense and what the law will allow. That said, it is always best to be as realistic as possible when drafting a separation agreement. Is a schedule of payments unrealistically difficult for one party? Will the children be able to adapt to a shared parenting arrangement? Are the parties' obligations to one another too complex? Are they too optimistic? Are they affordable? While it is best that all of the issues between the parties be dealt with in a separation agreement, the simpler an agreement is, the better it will usually work in real life.

===Children===

Issues about parenting after separation are covered by the federal ''[[Divorce Act]]'' for married spouses and by the provincial ''[[Family Law Act]]'' for married spouses, unmarried spouses and other unmarried couples, and other people who have an interest in the care of a child.

The ''Divorce Act'' uses some pretty old fashioned language to talk about children, ''custody'' and ''access''. The ''Family Law Act'' talks about people who are the ''guardians'' of a child and have ''parental responsibilities'' and ''parenting time'', and people who are not guardians and have ''contact''.

====Custody and access====

There are two basic types of custody available under the ''Divorce Act'': sole custody and joint custody. Sole custody is less common than it used to be, and is usually only appropriate where the parties are constantly at each other's throats or where one party is or expects to be absent from the child's life. Joint custody is far more common than sole custody. In this situation, both parents are custodians of the children and both have responsibility for making decisions about the children.

Joint custody has little to do with how much time the child spends with each parent. The child's time can be shared equally or almost equally, or the child can see a parent only on weekends, and the parents can still have joint custody.

====Guardianship====

Under s. 39(1) of the ''[[Family Law Act]]'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardian. A parent who has never lived with his or her child isn't a guardian unless the parent "regularly cares" for the child.

Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way, are parents who aren't guardians to begin with — parents who have never lived with the child and have not "regularly cared" for the child.) Someone who is not a parent can't be made a guardian by an agreement.

====Parental responsibilities====

Only a guardian can have parental responsibilities for a child under the ''Family Law Act''. These responsibilities are listed at s. 41:

<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote>
<blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;</tt></blockquote>
<blockquote><tt>(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote>
<blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote>
<blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>

Guardians can share one or more of these parental responsibilities, or one or more parental responsibilities can be allocated just to one guardian, so that only that guardian has responsibility for that issue.

====Parenting time and contact====

Parenting time and contact are both about the child's parenting schedule, although parenting time is about a bit more than just the child's schedule. Only guardians have parenting time; people who aren't guardians have contact with a child.

The terms of a child's parenting schedule can be very specific or, where the parties get along exceptionally well with one another, the terms can be as vague as "Jane will have liberal and generous parenting time with the child."

If there has been a history of difficulty exercising parenting time or contact, or there is even a smidgen of conflict between the parties, it can be important to spell out the child's schedule in more detail to avoid future arguments. The terms of the child's schedule usually spell out when the party will see the child on a week-to-week basis, such as "John will have the child from Friday at the end of school to the following Sunday at 7:00pm, every other week, plus each Wednesday from the end of school until 7:00pm."

Children's schedules can also take into account:

*the child's birthday,
*Mothers' Day and Fathers' Day,
*the parties' birthdays,
*school and religious holidays,
*extended access when there is a civic holiday or a professional development day at school,
*communication by telephone and computer, including email, instant messaging and video conferencing,
*responsibility for picking up and dropping off the child,
*school events,
*the child's extracurricular activities, and
*birthdays of the child's friends.

===Child support===

Child support is a monthly sum, paid by the parent who has the child for the least amount of time, the ''payor'', to the parent who has the child for the most amount of time, to help cover the day-to-day living expenses of the child. The amount of child support that is paid is almost always dealt with by referring to the [[Child Support Guidelines]], which set out the amount of a parent's child support obligation according to the number of children support is being paid for and the payor's income.

A good separation agreement will:

#state the income of each parent at the time the agreement is made,
#state the monthly child support to be paid,
#set up a system that requires the parties to exchange copies of their tax returns and Canada Revenue Agency notices of assessment each year or every other year,
#provide for a review of child support if the payor's income rises or falls, and
#provide for the recalculation of the parties' shares of the cost of the child's special expenses if either party's income rises or falls.

The Guidelines are an extremely convenient way to calculate a party's child support obligations up to the point where the spouse paying support, the ''payor'', has access to the child for 39% or less of the time. Once the payor has 40% or more of the child's time, the Guidelines tables become less important, and child support is assessed based on, among other things, each party's income and the amount of expenses related to the child that each party is paying. In the context of separation agreements, this allows for a little more flexibility in determining child support, but makes the annual exchange of financial information even more important.

===Spousal support===

Spousal support is paid by one spouse to the other to help cover that person's day-to-day living expenses. A separation agreement that provides for the payment of spousal support should be negotiated bearing in mind all of the things the court would have considered in making an order for spousal support.

Typically, a separation agreement that requires spousal support to be paid will include some means of limiting the length of time for which support will be payable. Such terms might include:

*a fixed length of time over which support will be paid, after which the payor will have no more responsibility to pay,
*an indefinite amount of time that support will be paid, with one or more dates set for spousal support to be reviewed,
*a series of graduated payments, so that the recipient receives a declining amount of support as he or she re-enters the work force,
*the termination of support if the recipient enters a new spousal relationship, or
*the payment of support in a single, lump sum.

In some situations, of course, permanent support may be required, especially if the relationship was lengthy or if the recipient is unlikely ever to become self-sufficient because of illness, for example.

Some agreements also provide that no spousal support will be payable. If you are the spouse who would ordinarily be entitled to receive support, you need to be pretty confident that the agreement is fair as it may be very difficult to get support later on if your personal circumstances change.

===The division of property and debt===

The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''[[Family Law Act]]'', each spouse is presumed to keep the property he or she brought into the relationship and share in the property bought during the relationship. The spouses are presumed to be each half responsible for any debt incurred during the relationship. However, you can make whatever other arrangements you want, as long as you both agree to those arrangements and they're reasonably fair.

When the division of property and debt are issues, it's often helpful to exchange Financial Statements. A Financial Statement, Form F8 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules], is a helpful court form in which each party describes his or her income, assets, expenses and debts on oath or affirmation, like an affidavit. This form can be very useful for each spouse to get a clear idea of the family's financial situation before negotiations start. You can find links to and examples of a Financial Statement and other forms in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

A separation agreement should talk about how debts will be managed. Separating couples typically pay out family debts by the sale of a shared asset where there's not enough cash to pay it out, which is usually how the mortgage on the family home gets paid out, or they can allocate a different share of the family property to compensate for a family debt that can't be paid out. When a debt won't be paid out, it's essential to do two things: allocate responsibility for the debt; and, provide that the party remaining responsible for the debt will protect the party from having to repay the debt.

===Other issues===

Arrangements for the care of children, the payment of support, and the division of family property and family debts are the most common issues that come up in family law. There are a whole host of other issues that couples may have to deal with, including some that can only be dealt with in separation agreements.

====The parties' future relationship with each other====

Most separation agreements include a whole section devoted to describing how the parties will deal with each other once the agreement is executed. Typically, this portion of an agreement requires the parties, among other things, to:

*not incur debts in the name of the other party,
*not interfere with the personal life of the other party, including interfering with the other party's relationships with his or her parents, family, friends, and future partners, and,
*not molest, harass or annoy the other party.

Some separation agreements will also describe what will happen if the parties reconcile with each other. Most often an agreement will simply say that it becomes a marriage agreement or a cohabitation agreement if the parties reconcile, and that it will not cease to be in effect simply because of the reconciliation.

====Life insurance====

Where children are involved, it can be a good idea to provide that each party will maintain a life insurance policy until the children have all reached the age of majority. Each policy will name the other parent as the sole beneficiary of the policy in trust for the benefit of the children, in order to ensure that the kids will be looked after in the event that either party dies. Most agreements that deal with insurance allow the parties to change the beneficiaries of their policies once the youngest child turns 19.

In general, it's only appropriate to include a term about insurance policies if the parents can afford to pay for those policies.

====Undisclosed assets====

If you have even the slightest doubt that the other party hasn't been entirely forthcoming about the extent of his or her assets, a term governing undisclosed assets can be important. These sorts of terms usually provide that:

*any property that wasn't disclosed when the agreement was executed will automatically be deemed to be owned equally by both parties,
*the party that didn't disclose the asset will have to give the other party one-half of the asset's value, and,
*the party that didn't disclose the asset will have to pay the expenses the other party incurred in finding the asset, plus a financial penalty.

==The effect of reconciliation==

Separation agreements don't always contain special terms providing for the reconciliation of the parties and the resumption of their relationship. But if a couple does reconcile, what happens to their separation agreement? Does the agreement stay in force? What happens if the parties separate again?

The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resume their relationship and live as a couple. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, ''[http://canlii.ca/t/5115 Sydor v. Sydor]'', 2003 CanLII 17626 (ON CA). In that case, the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, notwithstanding a term of the agreement that it is a "full, final and conclusive settlement" of all issues arising from their relationship.

The upshot of all this is that if there's a chance that you and your spouse might get back together, and you want your separation agreement to survive your reconciliation, you must put a term to that effect in your separation agreement. Without it, your agreement may be worthless if you reconcile and the relationship breaks down again at some point afterwards.

==Separation agreements filed in court==

Agreements that are filed in court can be enforced as if they were orders of the court in which they are filed. Among other things, this means that the Family Maintenance Enforcement Program can enforce an agreement for support exactly as it would enforce an order for support.

To find out how to file an agreement, or to see if your agreement has been filed in court, read [[How Do I File an Agreement in Court?]] It's located in the ''How Do I?'' part of this resource under ''Separation Agreements''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtAfterYouSeparate.php Legal Services Society's Family Law Website: Fact sheet on making an agreement after separation]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/whoCanHelpYouReachAnAgmt.php Legal Services Society's Family Law Website: Who can help you reach an agreement?]
* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2, Making Agreements]
*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]
* [http://www.lawsociety.bc.ca/docs/practice/checklists/D-3.pdf Law Society of BC: Separation agreement drafting checklist]

{{REVIEWED | reviewer = [[Barbara Nelson]] and [[Beatrice McCutcheon]], September 17, 2014}}

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[[Category:Family Law Agreements]]
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[[Category:JP Boyd on Family Law]]

Agreements after Separation

2017-02-23T17:40:13Z

Beatrice McCutcheon: /* Alternatives to separation agreements */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = more resources dealing with 
|link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements]
}}A separation agreement is a contract that records a settlement of the issues that arise when a married or unmarried relationship ends. Unlike marriage and cohabitation agreements which are made when a relationship starts, separation agreements are made when the relationship is over.

Separation agreements can be an effective and inexpensive way of settling things. However, the terms of the agreement must be fair, and the parties must be able to get along well enough to negotiate the deal and then put it into action when it's done.

This section provides an introduction to separation agreements, discusses how separation agreements are formed, and describes the legal requirements of separation agreements. It also looks at the typical subjects of separation agreements in some detail. In addition, it discusses the effect of reconciliation on separation agreements.

==Introduction==

Every separating couple has three options to resolve the legal issues between them:

#settle the matters between them out of court through negotiation or mediation, or through some other process like arbitration or collaborative settlement processes,
#have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process, or
#give up and just walk away from the mess.

It is almost always better to negotiate and settle a dispute than to begin a court proceeding and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process.

A couple can reach a settlement at any time, even after a court proceeding has started. Typically a settlement reached before a proceeding has begun is put into the form of a separation agreement. Settlements reached after the start of a proceeding can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a ''consent order'', an order that both parties agree the judge should make.

Separation agreements can deal with almost any issue a couple have to address, from who will keep the cats, to how the mortgage will be paid, to how the children's post-secondary education costs will be handled. They also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple.

Of course, separation agreements aren't for everyone. There must be a certain basic amount of mutual trust and good faith, and each party must have a certain flexibility and a willingness to accommodate the other side. A separation agreement will not be appropriate where a couple are so filled with anger, jealousy or stubbornness that even a basic level of mutual respect is absent and dialogue is not possible.

==Alternatives to separation agreements==

Settlement can be reached in a number of different ways before a court proceeding has started, through negotiation, mediation, a collaborative settlement process, or arbitration. Settlements reached in these ways are almost always recorded in the form of a separation agreement.

Settlements reached after a proceeding has started may be recorded as separation agreements if the terms of the settlement are complicated or if there are concerns about whether a term of the settlement can be put into a court order. In that case, the parties may enter into a separation agreement followed by a short consent order that resolves the issues raised in the court proceeding. Otherwise, a settlement of litigation will be recorded as minutes of settlement and a consent order.

====Minutes of settlement====

Minutes of settlement are a written record of the settlement of a court proceeding. They are reached after a court proceeding has begun and are usually used to describe the terms of a consent order, an order that both parties agree the court should make. Both of the lawyers and each of the parties will sign the minutes of settlement; usually only the lawyers will sign the final consent order.

Minutes of settlement sometimes have a rough-and-ready feel to them, as they are usually used to record an often hasty settlement of the legal issues, a settlement that is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less comprehensive than separation agreements. However, even though they lack the same fine-tuning and detail, minutes of settlement are just as binding upon the parties as a separation agreement would be. Both are contracts and can be enforced as such.

Minutes of settlement should:

#be signed by both lawyers and by both parties, although the signature of the parties isn't strictly necessary,
#deal with each significant issue in a final manner, and
#be attached to the draft consent order submitted to the court for its approval.

====Consent orders====

A consent order is an order that both parties agree that a judge should make. Consent orders are only appropriate if litigation has started. It is not necessary to have minutes of settlement done before a consent order is agreed to.

When a judge pronounces an order by consent, the order has just the same effect as a final order reached after a trial and is binding upon the parties as a final order.

====Minutes of settlement and consent orders====

The advantage of minutes of settlement is that the minutes can stand alone as evidence of the written agreement of the parties, while the form of a draft consent order, which may reflect the parties' agreement, still requires the court's approval. Moreover, if the terms of a draft consent order are argued about, there may not be any evidence of the agreement — as would be provided by minutes of settlement — which a court can use to decide the matter.

Consent orders have unique advantages of their own, in that it is usually extremely difficult to vary an order pronounced by consent without a serious and unanticipated change in circumstances, and because such orders are almost impossible to appeal.

===Other final agreements===

Any dispute a couple has can be resolved by a formal contract of some nature. Separation agreements can be made between married spouses or unmarried spouses and deal with a large range of issues, from the care of children to the division of property and debt.

Some couples may only have one issue to resolve and the usual sort of separation agreement isn't required. People who are just parents and never married or cohabited may want a parenting agreement that talks about parental responsibilities and the allocation of parenting time. Couples, including unmarried spouses who lived together for less than two years, who only need to deal with child support and/or spousal support may want a support agreement that deals with either or both issues. Couples who only need to resolve who keeps what property and which debts may want a simple property agreement.

Family law agreements can also involve more people than the people involved in a relationship. Separated parents might sign an agreement for contact with grandparents who want to see their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money.

==Entering into a separation agreement==

A separation agreement can be negotiated and signed at any time after a married or unmarried relationship has broken down. A separation agreement can be signed after a court proceeding has been started or before one has even been considered.

===The basic process===

The process for entering into a separation agreement is fairly simple. The parties discuss the issues resulting from the breakdown of their relationship between themselves (and, hopefully, in consultation with their lawyers as well). They attempt to reach a resolution of each of the legal issues that is as satisfactory to both of them as possible. It's a good idea to take notes and record how each issue is resolved, as these notes may wind up forming the basis for any agreement that might be reached.

The settlement process is a process of negotiation: each party usually has a pretty good idea of how they would like to see things resolved, and then, following the exchange of these ideas, a compromise is reached that represents a blending of the two positions. Once settlement is reached, one of the parties will draw up a formal agreement and give it to the other party. This draft is carefully reviewed to ensure that it accurately reflects the agreement that was reached, to check whether anything was left out, and to make sure that there are no other issues that need to be discussed and included.

Drafting a separation agreement is something that requires a great deal of skill and a solid understanding of family law and contract law. While kits are available that can guide you in drafting an agreement, I highly recommend that you hire a lawyer to deal with the matter when the content of your agreement is anything other than completely straightforward.

Once both parties are content with the text of the agreement, they must each take the agreement to their respective lawyers — or to any lawyer, for that matter — for advice on how the agreement affects their legal rights and the options they may have open to them if they don't sign the agreement. This is called getting ''independent legal advice''. This stage is critical for three reasons:

#If you are entering into an agreement that will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a court proceeding.
#You must understand the obligations and rights you have under the agreement.
#It stops either party from claiming, later on, that he or she didn't know what the agreement meant or that he or she was at a disadvantage because the other party's lawyer drafted the agreement.

After each party has had independent legal advice about the agreement, they will sign the agreement in the presence of a witness if they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement him- or herself.

Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement."

If the parties had legal advice, the lawyer who gave the advice will usually also sign a certificate confirming that: the party received advice as to how the agreement affects his or her legal interests; the party understood the terms of the agreement; and, the party wasn't forced into making the agreement. This is usually called a ''Certificate of Independent Legal Advice''.

Normally, four separate original copies of a separation agreement are executed. This is so that the parties and their lawyers can each have an original copy of the agreement. Sometimes, an extra original copy is executed in case the agreement must be filed in court.

===If you are negotiating an agreement and have a lawyer===

Even if you have a lawyer it can be extremely tempting to work something out with your ex on the side. If you feel even remotely tempted to do so, call your lawyer! Make sure your lawyer knows that you're trying to explore settlement, and make sure you understand what to say and what not to say.

Nothing is quite as frustrating as finding out that a client has negotiated an inadequate or prejudicial agreement without the lawyer's input. While you, the client, are free to do as you want and can arrive at any settlement you wish, be warned that you may find yourself settling for poor terms compared to what your lawyer might have been able to negotiate for you or compared to the results you might have obtained at trial. Remember that you may be stuck with any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one.

Call your lawyer before you sign or initial anything. This is what you're paying her for.

==Formal requirements of separation agreements==

A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord, or the company from which you lease your car. On the other hand, it's a special kind of agreement, different from commercial contracts, because it deals with family law issues that are also discussed in the ''[[Family Law Act]]'' and the ''[[Divorce Act]]''. As a result, the law dealing with separation agreements is a blend of legislation, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts.

The whole point of a separation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, the agreement must be enforceable and it must be able withstand a challenge in court, that is, it must be drafted in such a way and contain terms that are reasonably fair such that a court will uphold the agreement if it is attacked.

A separation agreement must therefore conform to certain basic rules, including these:

*A separation agreement must be in writing.
*The agreement must be signed by each party, and should be signed in the presence of a witness. Although an agreement made without a witness can still be valid and binding, it is a very good idea to have a witness (or witnesses) because she (or they) can confirm that the parties signed the agreement. In addition, sections 94 and 165 of the ''[[Family Law Act]]'' provide that a court cannot make an order about division of property and debt or spousal support that has been dealt with in a written, witnessed agreement between the parties unless the court has set aside the agreement.
*Neither party should be under a legal disability at the time the agreement is signed, however children who are parents or spouses may enter into a binding agreement.
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a proper family law agreement, you might want to think about certain other principles of contract law such as these:

*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
*Both parties must make full and complete disclosure of their circumstances going into the agreement.
*The parties cannot make an illegal bargain, that is, they can't make an agreement that obliges them to do something against the law.
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may be interpreted in favour of the party who didn't have the lawyer.
*The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void.

Family law agreements are also subject to other principles that don't necessarily apply to commercial contracts:

*The parties must make full, complete and honest disclosure of their financial circumstances going into the agreement.
*If one term of a separation agreement is void, only that term will fail and the rest of the agreement will continue as a valid agreement that is binding on the parties.
*A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement, that is, you can't say the whole agreement has been broken because the other party didn't do something he or she was supposed to do.
*While the parties can later agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force.

Note that the courts will rarely if ever uphold an agreement that attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward his or her children. The court will not consider itself bound by an agreement that says a person will never have to pay child support.

==The possible subjects of a separation agreement==

The potential subjects of a separation agreement are limited only by common sense and what the law will allow. That said, it is always best to be as realistic as possible when drafting a separation agreement. Is a schedule of payments unrealistically difficult for one party? Will the children be able to adapt to a shared parenting arrangement? Are the parties' obligations to one another too complex? Are they too optimistic? Are they affordable? While it is best that all of the issues between the parties be dealt with in a separation agreement, the simpler an agreement is, the better it will usually work in real life.

===Children===

Issues about parenting after separation are covered by the federal ''[[Divorce Act]]'' for married spouses and by the provincial ''[[Family Law Act]]'' for married spouses, unmarried spouses and other unmarried couples, and other people who have an interest in the care of a child.

The ''Divorce Act'' uses some pretty old fashioned language to talk about children, ''custody'' and ''access''. The ''Family Law Act'' talks about people who are the ''guardians'' of a child and have ''parental responsibilities'' and ''parenting time'', and people who are not guardians and have ''contact''.

====Custody and access====

There are two basic types of custody available under the ''Divorce Act'': sole custody and joint custody. Sole custody is less common than it used to be, and is usually only appropriate where the parties are constantly at each other's throats or where one party is or expects to be absent from the child's life. Joint custody is far more common than sole custody. In this situation, both parents are custodians of the children and both have responsibility for making decisions about the children.

Joint custody has little to do with how much time the child spends with each parent. The child's time can be shared equally or almost equally, or the child can see a parent only on weekends, and the parents can still have joint custody.

====Guardianship====

Under s. 39(1) of the ''[[Family Law Act]]'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardian. A parent who has never lived with his or her child isn't a guardian unless the parent "regularly cares" for the child.

Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way, are parents who aren't guardians to begin with — parents who have never lived with the child and have not "regularly cared" for the child.) Someone who is not a parent can't be made a guardian by an agreement.

====Parental responsibilities====

Only a guardian can have parental responsibilities for a child under the ''Family Law Act''. These responsibilities are listed at s. 41:

<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote>
<blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;</tt></blockquote>
<blockquote><tt>(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote>
<blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote>
<blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>

Guardians can share one or more of these parental responsibilities, or one or more parental responsibilities can be allocated just to one guardian, so that only that guardian has responsibility for that issue.

====Parenting time and contact====

Parenting time and contact are both about the child's parenting schedule, although parenting time is about a bit more than just the child's schedule. Only guardians have parenting time; people who aren't guardians have contact with a child.

The terms of a child's parenting schedule can be very specific or, where the parties get along exceptionally well with one another, the terms can be as vague as "Jane will have liberal and generous parenting time with the child."

If there has been a history of difficulty exercising parenting time or contact, or there is even a smidgen of conflict between the parties, it can be important to spell out the child's schedule in more detail to avoid future arguments. The terms of the child's schedule usually spell out when the party will see the child on a week-to-week basis, such as "John will have the child from Friday at the end of school to the following Sunday at 7:00pm, every other week, plus each Wednesday from the end of school until 7:00pm."

Children's schedules can also take into account:

*the child's birthday,
*Mothers' Day and Fathers' Day,
*the parties' birthdays,
*school and religious holidays,
*extended access when there is a civic holiday or a professional development day at school,
*communication by telephone and computer, including email, instant messaging and video conferencing,
*responsibility for picking up and dropping off the child,
*school events,
*the child's extracurricular activities, and
*birthdays of the child's friends.

===Child support===

Child support is a monthly sum, paid by the parent who has the child for the least amount of time, the ''payor'', to the parent who has the child for the most amount of time, to help cover the day-to-day living expenses of the child. The amount of child support that is paid is almost always dealt with by referring to the [[Child Support Guidelines]], which set out the amount of a parent's child support obligation according to the number of children support is being paid for and the payor's income.

A good separation agreement will:

#state the income of each parent at the time the agreement is made,
#state the monthly child support to be paid,
#set up a system that requires the parties to exchange copies of their tax returns and Canada Revenue Agency notices of assessment each year or every other year,
#provide for a review of child support if the payor's income rises or falls, and
#provide for the recalculation of the parties' shares of the cost of the child's special expenses if either party's income rises or falls.

The Guidelines are an extremely convenient way to calculate a party's child support obligations up to the point where the spouse paying support, the ''payor'', has access to the child for 39% or less of the time. Once the payor has 40% or more of the child's time, the Guidelines tables become less important, and child support is assessed based on, among other things, each party's income and the amount of expenses related to the child that each party is paying. In the context of separation agreements, this allows for a little more flexibility in determining child support, but makes the annual exchange of financial information even more important.

===Spousal support===

Spousal support is paid by one spouse to the other to help cover that person's day-to-day living expenses. A separation agreement that provides for the payment of spousal support should be negotiated bearing in mind all of the things the court would have considered in making an order for spousal support.

Typically, a separation agreement that requires spousal support to be paid will include some means of limiting the length of time for which support will be payable. Such terms might include:

*a fixed length of time over which support will be paid, after which the payor will have no more responsibility to pay,
*an indefinite amount of time that support will be paid, with one or more dates set for spousal support to be reviewed,
*a series of graduated payments, so that the recipient receives a declining amount of support as he or she re-enters the work force,
*the termination of support if the recipient enters a new spousal relationship, or
*the payment of support in a single, lump sum.

In some situations, of course, permanent support may be required, especially if the relationship was lengthy or if the recipient is unlikely ever to become self-sufficient because of illness, for example.

Some agreements also provide that no spousal support will be payable. If you are the spouse who would ordinarily be entitled to receive support, you need to be pretty confident that the agreement is fair as it may be very difficult to get support later on if your personal circumstances change.

===The division of property and debt===

The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''[[Family Law Act]]'', each spouse is presumed to keep the property he or she brought into the relationship and share in the property bought during the relationship. The spouses are presumed to be each half responsible for any debt incurred during the relationship. However, you can make whatever other arrangements you want, as long as you both agree to those arrangements and they're reasonably fair.

When the division of property and debt are issues, it's often helpful to exchange Financial Statements. A Financial Statement, Form F8 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules], is a helpful court form in which each party describes his or her income, assets, expenses and debts on oath or affirmation, like an affidavit. This form can be very useful for each spouse to get a clear idea of the family's financial situation before negotiations start. You can find links to and examples of a Financial Statement and other forms in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

A separation agreement should talk about how debts will be managed. Separating couples typically pay out family debts by the sale of a shared asset where there's not enough cash to pay it out, which is usually how the mortgage on the family home gets paid out, or they can allocate a different share of the family property to compensate for a family debt that can't be paid out. When a debt won't be paid out, it's essential to do two things: allocate responsibility for the debt; and, provide that the party remaining responsible for the debt will protect the party from having to repay the debt.

===Other issues===

Arrangements for the care of children, the payment of support, and the division of family property and family debts are the most common issues that come up in family law. There are a whole host of other issues that couples may have to deal with, including some that can only be dealt with in separation agreements.

====The parties' future relationship with each other====

Most separation agreements include a whole section devoted to describing how the parties will deal with each other once the agreement is executed. Typically, this portion of an agreement requires the parties, among other things, to:

*not incur debts in the name of the other party,
*not interfere with the personal life of the other party, including interfering with the other party's relationships with his or her parents, family, friends, and future partners, and,
*not molest, harass or annoy the other party.

Some separation agreements will also describe what will happen if the parties reconcile with each other. Most often an agreement will simply say that it becomes a marriage agreement or a cohabitation agreement if the parties reconcile, and that it will not cease to be in effect simply because of the reconciliation.

====Life insurance====

Where children are involved, it can be a good idea to provide that each party will maintain a life insurance policy until the children have all reached the age of majority. Each policy will name the other parent as the sole beneficiary of the policy in trust for the benefit of the children, in order to ensure that the kids will be looked after in the event that either party dies. Most agreements that deal with insurance allow the parties to change the beneficiaries of their policies once the youngest child turns 19.

In general, it's only appropriate to include a term about insurance policies if the parents can afford to pay for those policies.

====Undisclosed assets====

If you have even the slightest doubt that the other party hasn't been entirely forthcoming about the extent of his or her assets, a term governing undisclosed assets can be important. These sorts of terms usually provide that:

*any property that wasn't disclosed when the agreement was executed will automatically be deemed to be owned equally by both parties,
*the party that didn't disclose the asset will have to give the other party one-half of the asset's value, and,
*the party that didn't disclose the asset will have to pay the expenses the other party incurred in finding the asset, plus a financial penalty.

==The effect of reconciliation==

Separation agreements don't always contain special terms providing for the reconciliation of the parties and the resumption of their relationship. But if a couple does reconcile, what happens to their separation agreement? Does the agreement stay in force? What happens if the parties separate again?

The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resume their relationship and live as a couple. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, ''[http://canlii.ca/t/5115 Sydor v. Sydor]'', 2003 CanLII 17626 (ON CA). In that case, the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, notwithstanding a term of the agreement that it is a "full, final and conclusive settlement" of all issues arising from their relationship.

The upshot of all this is that if there's a chance that you and your spouse might get back together, and you want your separation agreement to survive your reconciliation, you must put a term to that effect in your separation agreement. Without it, your agreement may be worthless if you reconcile and the relationship breaks down again at some point afterwards.

==Separation agreements filed in court==

Agreements that are filed in court can be enforced as if they were orders of the court in which they are filed. Among other things, this means that the Family Maintenance Enforcement Program can enforce an agreement for support exactly as it would enforce an order for support.

To find out how to file an agreement, or to see if your agreement has been filed in court, read [[How Do I File an Agreement in Court?]] It's located in the ''How Do I?'' part of this resource under ''Separation Agreements''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtAfterYouSeparate.php Legal Services Society's Family Law Website: Fact sheet on making an agreement after separation]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/whoCanHelpYouReachAnAgmt.php Legal Services Society's Family Law Website: Who can help you reach an agreement?]
* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2, Making Agreements]
*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]
* [http://www.lawsociety.bc.ca/docs/practice/checklists/D-3.pdf Law Society of BC: Separation agreement drafting checklist]

{{REVIEWED | reviewer = [[Barbara Nelson]] and [[Beatrice McCutcheon]], September 17, 2014}}

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[[Category:Family Law Agreements]]
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[[Category:JP Boyd on Family Law]]

Agreements after Separation

2017-02-23T17:39:30Z

Beatrice McCutcheon: /* Alternatives to separation agreements */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = more resources dealing with 
|link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements]
}}A separation agreement is a contract that records a settlement of the issues that arise when a married or unmarried relationship ends. Unlike marriage and cohabitation agreements which are made when a relationship starts, separation agreements are made when the relationship is over.

Separation agreements can be an effective and inexpensive way of settling things. However, the terms of the agreement must be fair, and the parties must be able to get along well enough to negotiate the deal and then put it into action when it's done.

This section provides an introduction to separation agreements, discusses how separation agreements are formed, and describes the legal requirements of separation agreements. It also looks at the typical subjects of separation agreements in some detail. In addition, it discusses the effect of reconciliation on separation agreements.

==Introduction==

Every separating couple has three options to resolve the legal issues between them:

#settle the matters between them out of court through negotiation or mediation, or through some other process like arbitration or collaborative settlement processes,
#have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process, or
#give up and just walk away from the mess.

It is almost always better to negotiate and settle a dispute than to begin a court proceeding and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process.

A couple can reach a settlement at any time, even after a court proceeding has started. Typically a settlement reached before a proceeding has begun is put into the form of a separation agreement. Settlements reached after the start of a proceeding can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a ''consent order'', an order that both parties agree the judge should make.

Separation agreements can deal with almost any issue a couple have to address, from who will keep the cats, to how the mortgage will be paid, to how the children's post-secondary education costs will be handled. They also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple.

Of course, separation agreements aren't for everyone. There must be a certain basic amount of mutual trust and good faith, and each party must have a certain flexibility and a willingness to accommodate the other side. A separation agreement will not be appropriate where a couple are so filled with anger, jealousy or stubbornness that even a basic level of mutual respect is absent and dialogue is not possible.

==Alternatives to separation agreements==

Settlement can be reached in a number of different ways before a court proceeding has started, through negotiation, mediation, a collaborative settlement process, or arbitration. Settlements reached in these ways are almost always recorded in the form of a separation agreement.

Settlements reached after a proceeding has started may be recorded as separation agreements if the terms of the settlement are complicated or if there are concerns about whether a term of the settlement can be put into a court order. In that case, the parties may enter into a separation agreement followed by a brief consent order that resolves the issues raised in the court proceeding. Otherwise, a settlement of litigation will be recorded as minutes of settlement and a consent order.

====Minutes of settlement====

Minutes of settlement are a written record of the settlement of a court proceeding. They are reached after a court proceeding has begun and are usually used to describe the terms of a consent order, an order that both parties agree the court should make. Both of the lawyers and each of the parties will sign the minutes of settlement; usually only the lawyers will sign the final consent order.

Minutes of settlement sometimes have a rough-and-ready feel to them, as they are usually used to record an often hasty settlement of the legal issues, a settlement that is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less comprehensive than separation agreements. However, even though they lack the same fine-tuning and detail, minutes of settlement are just as binding upon the parties as a separation agreement would be. Both are contracts and can be enforced as such.

Minutes of settlement should:

#be signed by both lawyers and by both parties, although the signature of the parties isn't strictly necessary,
#deal with each significant issue in a final manner, and
#be attached to the draft consent order submitted to the court for its approval.

====Consent orders====

A consent order is an order that both parties agree that a judge should make. Consent orders are only appropriate if litigation has started. It is not necessary to have minutes of settlement done before a consent order is agreed to.

When a judge pronounces an order by consent, the order has just the same effect as a final order reached after a trial and is binding upon the parties as a final order.

====Minutes of settlement and consent orders====

The advantage of minutes of settlement is that the minutes can stand alone as evidence of the written agreement of the parties, while the form of a draft consent order, which may reflect the parties' agreement, still requires the court's approval. Moreover, if the terms of a draft consent order are argued about, there may not be any evidence of the agreement — as would be provided by minutes of settlement — which a court can use to decide the matter.

Consent orders have unique advantages of their own, in that it is usually extremely difficult to vary an order pronounced by consent without a serious and unanticipated change in circumstances, and because such orders are almost impossible to appeal.

===Other final agreements===

Any dispute a couple has can be resolved by a formal contract of some nature. Separation agreements can be made between married spouses or unmarried spouses and deal with a large range of issues, from the care of children to the division of property and debt.

Some couples may only have one issue to resolve and the usual sort of separation agreement isn't required. People who are just parents and never married or cohabited may want a parenting agreement that talks about parental responsibilities and the allocation of parenting time. Couples, including unmarried spouses who lived together for less than two years, who only need to deal with child support and/or spousal support may want a support agreement that deals with either or both issues. Couples who only need to resolve who keeps what property and which debts may want a simple property agreement.

Family law agreements can also involve more people than the people involved in a relationship. Separated parents might sign an agreement for contact with grandparents who want to see their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money.

==Entering into a separation agreement==

A separation agreement can be negotiated and signed at any time after a married or unmarried relationship has broken down. A separation agreement can be signed after a court proceeding has been started or before one has even been considered.

===The basic process===

The process for entering into a separation agreement is fairly simple. The parties discuss the issues resulting from the breakdown of their relationship between themselves (and, hopefully, in consultation with their lawyers as well). They attempt to reach a resolution of each of the legal issues that is as satisfactory to both of them as possible. It's a good idea to take notes and record how each issue is resolved, as these notes may wind up forming the basis for any agreement that might be reached.

The settlement process is a process of negotiation: each party usually has a pretty good idea of how they would like to see things resolved, and then, following the exchange of these ideas, a compromise is reached that represents a blending of the two positions. Once settlement is reached, one of the parties will draw up a formal agreement and give it to the other party. This draft is carefully reviewed to ensure that it accurately reflects the agreement that was reached, to check whether anything was left out, and to make sure that there are no other issues that need to be discussed and included.

Drafting a separation agreement is something that requires a great deal of skill and a solid understanding of family law and contract law. While kits are available that can guide you in drafting an agreement, I highly recommend that you hire a lawyer to deal with the matter when the content of your agreement is anything other than completely straightforward.

Once both parties are content with the text of the agreement, they must each take the agreement to their respective lawyers — or to any lawyer, for that matter — for advice on how the agreement affects their legal rights and the options they may have open to them if they don't sign the agreement. This is called getting ''independent legal advice''. This stage is critical for three reasons:

#If you are entering into an agreement that will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a court proceeding.
#You must understand the obligations and rights you have under the agreement.
#It stops either party from claiming, later on, that he or she didn't know what the agreement meant or that he or she was at a disadvantage because the other party's lawyer drafted the agreement.

After each party has had independent legal advice about the agreement, they will sign the agreement in the presence of a witness if they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement him- or herself.

Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement."

If the parties had legal advice, the lawyer who gave the advice will usually also sign a certificate confirming that: the party received advice as to how the agreement affects his or her legal interests; the party understood the terms of the agreement; and, the party wasn't forced into making the agreement. This is usually called a ''Certificate of Independent Legal Advice''.

Normally, four separate original copies of a separation agreement are executed. This is so that the parties and their lawyers can each have an original copy of the agreement. Sometimes, an extra original copy is executed in case the agreement must be filed in court.

===If you are negotiating an agreement and have a lawyer===

Even if you have a lawyer it can be extremely tempting to work something out with your ex on the side. If you feel even remotely tempted to do so, call your lawyer! Make sure your lawyer knows that you're trying to explore settlement, and make sure you understand what to say and what not to say.

Nothing is quite as frustrating as finding out that a client has negotiated an inadequate or prejudicial agreement without the lawyer's input. While you, the client, are free to do as you want and can arrive at any settlement you wish, be warned that you may find yourself settling for poor terms compared to what your lawyer might have been able to negotiate for you or compared to the results you might have obtained at trial. Remember that you may be stuck with any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one.

Call your lawyer before you sign or initial anything. This is what you're paying her for.

==Formal requirements of separation agreements==

A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord, or the company from which you lease your car. On the other hand, it's a special kind of agreement, different from commercial contracts, because it deals with family law issues that are also discussed in the ''[[Family Law Act]]'' and the ''[[Divorce Act]]''. As a result, the law dealing with separation agreements is a blend of legislation, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts.

The whole point of a separation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, the agreement must be enforceable and it must be able withstand a challenge in court, that is, it must be drafted in such a way and contain terms that are reasonably fair such that a court will uphold the agreement if it is attacked.

A separation agreement must therefore conform to certain basic rules, including these:

*A separation agreement must be in writing.
*The agreement must be signed by each party, and should be signed in the presence of a witness. Although an agreement made without a witness can still be valid and binding, it is a very good idea to have a witness (or witnesses) because she (or they) can confirm that the parties signed the agreement. In addition, sections 94 and 165 of the ''[[Family Law Act]]'' provide that a court cannot make an order about division of property and debt or spousal support that has been dealt with in a written, witnessed agreement between the parties unless the court has set aside the agreement.
*Neither party should be under a legal disability at the time the agreement is signed, however children who are parents or spouses may enter into a binding agreement.
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a proper family law agreement, you might want to think about certain other principles of contract law such as these:

*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
*Both parties must make full and complete disclosure of their circumstances going into the agreement.
*The parties cannot make an illegal bargain, that is, they can't make an agreement that obliges them to do something against the law.
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may be interpreted in favour of the party who didn't have the lawyer.
*The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void.

Family law agreements are also subject to other principles that don't necessarily apply to commercial contracts:

*The parties must make full, complete and honest disclosure of their financial circumstances going into the agreement.
*If one term of a separation agreement is void, only that term will fail and the rest of the agreement will continue as a valid agreement that is binding on the parties.
*A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement, that is, you can't say the whole agreement has been broken because the other party didn't do something he or she was supposed to do.
*While the parties can later agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force.

Note that the courts will rarely if ever uphold an agreement that attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward his or her children. The court will not consider itself bound by an agreement that says a person will never have to pay child support.

==The possible subjects of a separation agreement==

The potential subjects of a separation agreement are limited only by common sense and what the law will allow. That said, it is always best to be as realistic as possible when drafting a separation agreement. Is a schedule of payments unrealistically difficult for one party? Will the children be able to adapt to a shared parenting arrangement? Are the parties' obligations to one another too complex? Are they too optimistic? Are they affordable? While it is best that all of the issues between the parties be dealt with in a separation agreement, the simpler an agreement is, the better it will usually work in real life.

===Children===

Issues about parenting after separation are covered by the federal ''[[Divorce Act]]'' for married spouses and by the provincial ''[[Family Law Act]]'' for married spouses, unmarried spouses and other unmarried couples, and other people who have an interest in the care of a child.

The ''Divorce Act'' uses some pretty old fashioned language to talk about children, ''custody'' and ''access''. The ''Family Law Act'' talks about people who are the ''guardians'' of a child and have ''parental responsibilities'' and ''parenting time'', and people who are not guardians and have ''contact''.

====Custody and access====

There are two basic types of custody available under the ''Divorce Act'': sole custody and joint custody. Sole custody is less common than it used to be, and is usually only appropriate where the parties are constantly at each other's throats or where one party is or expects to be absent from the child's life. Joint custody is far more common than sole custody. In this situation, both parents are custodians of the children and both have responsibility for making decisions about the children.

Joint custody has little to do with how much time the child spends with each parent. The child's time can be shared equally or almost equally, or the child can see a parent only on weekends, and the parents can still have joint custody.

====Guardianship====

Under s. 39(1) of the ''[[Family Law Act]]'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardian. A parent who has never lived with his or her child isn't a guardian unless the parent "regularly cares" for the child.

Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way, are parents who aren't guardians to begin with — parents who have never lived with the child and have not "regularly cared" for the child.) Someone who is not a parent can't be made a guardian by an agreement.

====Parental responsibilities====

Only a guardian can have parental responsibilities for a child under the ''Family Law Act''. These responsibilities are listed at s. 41:

<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote>
<blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;</tt></blockquote>
<blockquote><tt>(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote>
<blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote>
<blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>

Guardians can share one or more of these parental responsibilities, or one or more parental responsibilities can be allocated just to one guardian, so that only that guardian has responsibility for that issue.

====Parenting time and contact====

Parenting time and contact are both about the child's parenting schedule, although parenting time is about a bit more than just the child's schedule. Only guardians have parenting time; people who aren't guardians have contact with a child.

The terms of a child's parenting schedule can be very specific or, where the parties get along exceptionally well with one another, the terms can be as vague as "Jane will have liberal and generous parenting time with the child."

If there has been a history of difficulty exercising parenting time or contact, or there is even a smidgen of conflict between the parties, it can be important to spell out the child's schedule in more detail to avoid future arguments. The terms of the child's schedule usually spell out when the party will see the child on a week-to-week basis, such as "John will have the child from Friday at the end of school to the following Sunday at 7:00pm, every other week, plus each Wednesday from the end of school until 7:00pm."

Children's schedules can also take into account:

*the child's birthday,
*Mothers' Day and Fathers' Day,
*the parties' birthdays,
*school and religious holidays,
*extended access when there is a civic holiday or a professional development day at school,
*communication by telephone and computer, including email, instant messaging and video conferencing,
*responsibility for picking up and dropping off the child,
*school events,
*the child's extracurricular activities, and
*birthdays of the child's friends.

===Child support===

Child support is a monthly sum, paid by the parent who has the child for the least amount of time, the ''payor'', to the parent who has the child for the most amount of time, to help cover the day-to-day living expenses of the child. The amount of child support that is paid is almost always dealt with by referring to the [[Child Support Guidelines]], which set out the amount of a parent's child support obligation according to the number of children support is being paid for and the payor's income.

A good separation agreement will:

#state the income of each parent at the time the agreement is made,
#state the monthly child support to be paid,
#set up a system that requires the parties to exchange copies of their tax returns and Canada Revenue Agency notices of assessment each year or every other year,
#provide for a review of child support if the payor's income rises or falls, and
#provide for the recalculation of the parties' shares of the cost of the child's special expenses if either party's income rises or falls.

The Guidelines are an extremely convenient way to calculate a party's child support obligations up to the point where the spouse paying support, the ''payor'', has access to the child for 39% or less of the time. Once the payor has 40% or more of the child's time, the Guidelines tables become less important, and child support is assessed based on, among other things, each party's income and the amount of expenses related to the child that each party is paying. In the context of separation agreements, this allows for a little more flexibility in determining child support, but makes the annual exchange of financial information even more important.

===Spousal support===

Spousal support is paid by one spouse to the other to help cover that person's day-to-day living expenses. A separation agreement that provides for the payment of spousal support should be negotiated bearing in mind all of the things the court would have considered in making an order for spousal support.

Typically, a separation agreement that requires spousal support to be paid will include some means of limiting the length of time for which support will be payable. Such terms might include:

*a fixed length of time over which support will be paid, after which the payor will have no more responsibility to pay,
*an indefinite amount of time that support will be paid, with one or more dates set for spousal support to be reviewed,
*a series of graduated payments, so that the recipient receives a declining amount of support as he or she re-enters the work force,
*the termination of support if the recipient enters a new spousal relationship, or
*the payment of support in a single, lump sum.

In some situations, of course, permanent support may be required, especially if the relationship was lengthy or if the recipient is unlikely ever to become self-sufficient because of illness, for example.

Some agreements also provide that no spousal support will be payable. If you are the spouse who would ordinarily be entitled to receive support, you need to be pretty confident that the agreement is fair as it may be very difficult to get support later on if your personal circumstances change.

===The division of property and debt===

The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''[[Family Law Act]]'', each spouse is presumed to keep the property he or she brought into the relationship and share in the property bought during the relationship. The spouses are presumed to be each half responsible for any debt incurred during the relationship. However, you can make whatever other arrangements you want, as long as you both agree to those arrangements and they're reasonably fair.

When the division of property and debt are issues, it's often helpful to exchange Financial Statements. A Financial Statement, Form F8 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules], is a helpful court form in which each party describes his or her income, assets, expenses and debts on oath or affirmation, like an affidavit. This form can be very useful for each spouse to get a clear idea of the family's financial situation before negotiations start. You can find links to and examples of a Financial Statement and other forms in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

A separation agreement should talk about how debts will be managed. Separating couples typically pay out family debts by the sale of a shared asset where there's not enough cash to pay it out, which is usually how the mortgage on the family home gets paid out, or they can allocate a different share of the family property to compensate for a family debt that can't be paid out. When a debt won't be paid out, it's essential to do two things: allocate responsibility for the debt; and, provide that the party remaining responsible for the debt will protect the party from having to repay the debt.

===Other issues===

Arrangements for the care of children, the payment of support, and the division of family property and family debts are the most common issues that come up in family law. There are a whole host of other issues that couples may have to deal with, including some that can only be dealt with in separation agreements.

====The parties' future relationship with each other====

Most separation agreements include a whole section devoted to describing how the parties will deal with each other once the agreement is executed. Typically, this portion of an agreement requires the parties, among other things, to:

*not incur debts in the name of the other party,
*not interfere with the personal life of the other party, including interfering with the other party's relationships with his or her parents, family, friends, and future partners, and,
*not molest, harass or annoy the other party.

Some separation agreements will also describe what will happen if the parties reconcile with each other. Most often an agreement will simply say that it becomes a marriage agreement or a cohabitation agreement if the parties reconcile, and that it will not cease to be in effect simply because of the reconciliation.

====Life insurance====

Where children are involved, it can be a good idea to provide that each party will maintain a life insurance policy until the children have all reached the age of majority. Each policy will name the other parent as the sole beneficiary of the policy in trust for the benefit of the children, in order to ensure that the kids will be looked after in the event that either party dies. Most agreements that deal with insurance allow the parties to change the beneficiaries of their policies once the youngest child turns 19.

In general, it's only appropriate to include a term about insurance policies if the parents can afford to pay for those policies.

====Undisclosed assets====

If you have even the slightest doubt that the other party hasn't been entirely forthcoming about the extent of his or her assets, a term governing undisclosed assets can be important. These sorts of terms usually provide that:

*any property that wasn't disclosed when the agreement was executed will automatically be deemed to be owned equally by both parties,
*the party that didn't disclose the asset will have to give the other party one-half of the asset's value, and,
*the party that didn't disclose the asset will have to pay the expenses the other party incurred in finding the asset, plus a financial penalty.

==The effect of reconciliation==

Separation agreements don't always contain special terms providing for the reconciliation of the parties and the resumption of their relationship. But if a couple does reconcile, what happens to their separation agreement? Does the agreement stay in force? What happens if the parties separate again?

The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resume their relationship and live as a couple. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, ''[http://canlii.ca/t/5115 Sydor v. Sydor]'', 2003 CanLII 17626 (ON CA). In that case, the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, notwithstanding a term of the agreement that it is a "full, final and conclusive settlement" of all issues arising from their relationship.

The upshot of all this is that if there's a chance that you and your spouse might get back together, and you want your separation agreement to survive your reconciliation, you must put a term to that effect in your separation agreement. Without it, your agreement may be worthless if you reconcile and the relationship breaks down again at some point afterwards.

==Separation agreements filed in court==

Agreements that are filed in court can be enforced as if they were orders of the court in which they are filed. Among other things, this means that the Family Maintenance Enforcement Program can enforce an agreement for support exactly as it would enforce an order for support.

To find out how to file an agreement, or to see if your agreement has been filed in court, read [[How Do I File an Agreement in Court?]] It's located in the ''How Do I?'' part of this resource under ''Separation Agreements''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtAfterYouSeparate.php Legal Services Society's Family Law Website: Fact sheet on making an agreement after separation]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/whoCanHelpYouReachAnAgmt.php Legal Services Society's Family Law Website: Who can help you reach an agreement?]
* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2, Making Agreements]
*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]
* [http://www.lawsociety.bc.ca/docs/practice/checklists/D-3.pdf Law Society of BC: Separation agreement drafting checklist]

{{REVIEWED | reviewer = [[Barbara Nelson]] and [[Beatrice McCutcheon]], September 17, 2014}}

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Marriage Agreements

2017-02-23T17:33:25Z

Beatrice McCutcheon: /* Resources and links */

Marriage Agreements

2017-02-23T17:32:48Z

Beatrice McCutcheon: /* The possible subjects of a marriage agreement */

Cohabitation and Living Together Agreements

2017-02-23T01:20:28Z

Beatrice McCutcheon:

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtWhenYouLiveTogether.php Making an agreement when you live together]
}}Cohabitation agreements are contracts signed by couples who plan to live together or who are already living together. Cohabitation agreements typically deal with things like how property and debt will be divided or whether spousal support will be paid if the relationship ends. Cohabitation agreements can also deal with things during the relationship, like how the housework is distributed and how the household expenses are paid. There is no legal requirement for people to sign a cohabitation agreement when they decide to live together.

This section talks about when and why cohabitation agreements are usually signed and the legal requirements of valid cohabitation agreements.

==Entering into a cohabitation agreement==

Cohabitation agreements, also known as "living together agreements," are usually signed before or shortly after a couple starts living together. A couple may enter into a cohabitation agreement with the intention of addressing things that might happen during the time they live together, while they ''cohabit'', but cohabitation agreements are most often intended to address the issues that might arise if their relationship breaks down.

''There is no legal requirement that you must sign a cohabitation agreement if you're living with someone or plan on living with someone. You can't be forced to sign a cohabitation agreement.''

===Unmarried couples and cohabitation agreements===

The big difference between marriage agreements and cohabitation agreements is that people who sign a cohabitation agreement aren't married and may not intend to get married, or at least not just yet. They may become unmarried spouses or they may not. As a result, it's important to understand exactly how the legal status of unmarried spouses differs from the legal status of other unmarried couples and the legal status of married spouses before even thinking about the idea of a cohabitation agreement.

Married spouses have been legally married, either by a civil ceremony performed by a marriage commissioner or in a religious ceremony performed by a religious official. Married spouses who go to court are entitled to ask for orders under the ''[[Family Law Act]]'' about the division of property and debt and spousal support, and, if they have children, orders about parenting arrangements and contact.

An unmarried couple will become "spouses" for the purposes of the ''[[Family Law Act]]'' if:

#they've lived together in a marriage-like relationship for two years, or
#they've lived together in a marriage-like relationship for a shorter period of time and have a child together.

Unmarried spouses who have lived together for at least two years and go to court are entitled to ask for orders under the ''[[Family Law Act]]'' about the division of property and debt and spousal support, and, if they have children, orders about parenting arrangements and contact. Their rights are exactly the same as married spouses; these couples should also read the discussion on [[Marriage Agreements]] in the next section of this chapter.

However, unmarried spouses who have a child and have lived together for less than two years are only entitled to ask for orders about spousal support, and, if they have children, orders about parenting arrangements and contact. They can't ask for orders about the division of property and debt under the ''Family Law Act''.

In some situations, an unmarried couple can become spouses for the purposes of the ''Family Law Act'' if they have been in a marriage-like relationship for two years, even if they do not live together in the same house all of the time. In other situations, an unmarried couple may not become spouses even after living together for two years, if they are not in a marriage-like relationship. If you are not sure about whether you would be a spouse for the purposes of the ''Family Law Act'', it is good idea to get legal advice about this issue as part of deciding whether you need an agreement.

An unmarried couple who aren't spouses under the ''[[Family Law Act]]'' can only ask for orders about parenting arrangements and contact. They can't ask for orders about the division of property and debt or spousal support under the ''Family Law Act''.

For the purposes of this discussion, the critical distinction between unmarried spouses who have lived together and other unmarried couples lies in the different legal issues that arise when these different sorts of relationship come to an end. Here's a summary:

::{| width="65%" class="wikitable"
!style="width: 20%"|
!style="width: 15%" align="center"|Unmarried Spouses (together for two years or more)
!style="width: 15%" align="center"|Unmarried Spouses (together for less than two years)
!style="width: 15%" align="center"|Other Unmarried Couples
|-
|align="center"|'''Divorce'''|| || ||
|-
|align="center"|'''Guardianship'''||align="center"|Yes||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Parental Responsibilities and Parenting Time'''||align="center"|Yes||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Contact'''||align="center"|Yes||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Child Support'''||align="center"|Yes||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Spousal Support||align="center"|Yes||align="center"|Yes||
|-
|align="center"|'''Family Property and Family Debt'''||align="center"|Yes|| ||
|-
|align="center"|'''Protection Orders'''||align="center"|Yes||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Financial Restraining Orders'''||align="center"|Yes|| ||
|}

Issues relating to the care and financial support of children born to unmarried people are fairly straightforward, since legal issues about children mostly depend on whether someone is a ''parent'', not on the nature of the relationship between the parties. Only married spouses and unmarried spouses who have lived together for at least two years or have a child together can make claims for spousal support, and only married spouses and unmarried spouses who have lived together for at least two years can make claims for the division of property and debt.

===Deciding whether a cohabitation agreement is appropriate===

The most common reason why a couple enters into cohabitation agreements is to protect their separate property and income, so that each person's property going into a relationship is preserved as much as possible if the relationship comes to an end. Sometimes one person wants to preserve property from claims by the other person; sometimes a person will want to protect property from the other person's debts. Generally speaking, most couples who are thinking about executing a cohabitation agreement want a "I'll keep what's mine, you'll keep what's yours" sort of deal, and that's fine.

A couple might also enter into a cohabitation agreement to address spousal support if the relationship comes to an end. Sometimes a person will want to guarantee a certain minimum payment, but most often people want to be protected from having to pay spousal support. That's fine too, it happens all the time.

Cohabitation agreements are usually entered into when:

*the relationship is expected to be a long one,
*one or both parties have a substantial amount of property going into the relationship,
*one or both parties have significant debts going into the relationship,
*one of the parties has significantly more income than the other,
*one or both parties expect to acquire property during the relationship from, for example, a business, an inheritance, a court award, a gift, or employment income,
*one or both parties are bringing a child into the relationship,
*the parties expect to have child within the first two years of living together, or
*the parties expect that spousal support may be an issue if the relationship ends.

Cohabitation agreements are generally not appropriate when:

*the couple are young,
*neither party has significant property or debt going into the relationship,
*neither party is bringing any children into the relationship and no children are expected right away, and
*both parties are working out of the home and expect to continue working out of the home.

On top of these considerations, the ''[[Family Law Act]]'' also says that an agreement made before the parties have separated cannot deal with:

#parental responsibilities and parenting time, or
#child support.

Cohabitation agreements can also be useful to set rules for how the parties will manage things during the relationship, although this type of cohabitation agreement is fairly rare. When a cohabitation agreement is needed to deal with those issues, the parties' financial positions may not be relevant.

The usual sort of things a household management type of cohabitation agreement might be intended to address include:

*Who will pay for the household expenses? Will each party pay for a specific set of bills, or will the parties share in all the bills in a fixed amount?
*Will the parties keep separate bank accounts, or will they have a joint account for household costs? If there is a joint account, how will each party contribute to the account?
*Who will do the household chores? Will each party be responsible for a list of particular tasks?
*How will children brought into the relationship be cared for? Will the other party assume any parenting tasks?

If, at the end of the day, a cohabitation agreement is appropriate and desirable, the parties will negotiate the terms of the agreement, and someone, whether a lawyer or one of the parties, will draft the written agreement. As with all family law agreements, it's important that both parties get independent legal advice about what exactly the agreement means, how it affects their present rights and responsibilities towards one another, and how it will affect those rights and responsibilities if their relationship comes to an end. Getting independent legal advice strengthens the agreement by preventing one spouse from saying "I didn't know what it meant!" if the agreement is challenged later on.

Finally, a good cohabitation agreement should specify what will happen if the parties marry. The agreement could continue in effect after the marriage, terminate when the parties are married, or be reviewed and revised by the parties at the time of the marriage. In any case, the prospect of marriage and its impact on the cohabitation agreement should be dealt with in some manner.

===Avoid do-it-yourself cohabitation agreement kits===

Staples, Chapters, London Drugs and other stores generally carry a wide range of DIY legal products, from doing your own will to getting your own divorce.

In my view most of these do-it-yourself kits are fine for most people most of the time. However, cohabitation agreements can be complicated and must be drafted with a good knowledge of family law, cohabitation agreements in particular, and the general law applicable in British Columbia. Using a do-it-yourself cohabitation agreement kit is really not a good strategy.

If you figure that you absolutely must have a cohabitation agreement, it's well worth spending $1,500 to $4,000 to have a lawyer draw it up correctly for you, rather than spending $15,000 to $40,000 on lawyer's fees down the road if the agreement is flawed.

==Legal and formal requirements of a cohabitation agreement==

The point of entering into a cohabitation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, a cohabitation agreement, just like any other family law agreement, must conform to certain basic rules, including the following:

*A cohabitation agreement must be in writing.
*The agreement must be signed by each party, and should be signed in the presence of a witness. Although an agreement made without a witness can still be valid and binding, it is a very good idea to have a witness (or witnesses) because she (or they) can confirm that the parties signed the agreement. In addition, sections 94 and 165 of the ''[[Family Law Act]]'' provide that a court cannot make an order about division of property and debt or spousal support that has been dealt with in a written, witnessed agreement between the parties unless the court has set aside the agreement.
*Neither party should be under a legal disability when signing the agreement, however children who are parents or spouses may enter into a binding agreement.
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a family law agreement, you might want to think about certain other principles of contract law such as these:

*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
*Both parties must make full and complete disclosure of their circumstances going into the agreement. This disclosure should include complete information about the parties' assets and debts, as well as information about the values of the assets and amounts owing on the debts.
*The parties cannot make an illegal bargain, that is, they can't make an agreement that obliges them to do something against the law.
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may be interpreted in favour of the party who didn't have the lawyer.
*The court will attempt to give effect to a contract wherever possible, that is, it will attempt to give meaning to the terms of a contract rather than declare it void.
*If a term of a cohabitation agreement is found to be invalid, only the invalid part of the agreement will stop being in effect. The remainder of the agreement will continue to be valid and binding on the parties.

Aside from these considerations, it's also important to remember that cohabitation agreements that deal with property and debts or issues like spousal support are usually only meant to be used when the relationship comes to an end, at some unknown time in the future. As a result, it can be difficult to guess what each party's situation will be like when the agreement begins to operate and guess whether it will still be appropriate and fair. Because of these problems, hiring the services of a lawyer to prepare a cohabitation agreement is highly recommended. Crafting a solid cohabitation agreement is a tricky business at the best of times.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

*[http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtWhenYouLiveTogether.php Legal Services Society Family Law Website: Making an agreement when you live together]
*[http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2, Making Agreements]
*[http://www.clicklaw.bc.ca/resource/1259 Canadian Bar Association BC Branch: Script on marriage agreements and cohabitation agreements]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], February 22, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}
[[Category:Family Law Agreements]]
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[[Category:JP Boyd on Family Law]]

Cohabitation and Living Together Agreements

2017-02-23T01:19:16Z

Beatrice McCutcheon:

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtWhenYouLiveTogether.php Making an agreement when you live together]
}}Cohabitation agreements are contracts signed by couples who plan to live together or who are already living together. Cohabitation agreements typically deal with things like how property and debt will be divided or whether spousal support will be paid if the relationship ends. Cohabitation agreements can also deal with things during the relationship, like how the housework is distributed and how the household expenses are paid. There is no legal requirement for people to sign a cohabitation agreement when they decide to live together.

This section talks about when and why cohabitation agreements are usually signed and the legal requirements of valid cohabitation agreements.

==Entering into a cohabitation agreement==

Cohabitation agreements, also known as "living together agreements," are usually signed before or shortly after a couple starts living together. A couple may enter into a cohabitation agreement with the intention of addressing things that might happen during the time they live together, while they ''cohabit'', but cohabitation agreements are most often intended to address the issues that might arise if their relationship breaks down.

''There is no legal requirement that you must sign a cohabitation agreement if you're living with someone or plan on living with someone. You can't be forced to sign a cohabitation agreement.''

===Unmarried couples and cohabitation agreements===

The big difference between marriage agreements and cohabitation agreements is that people who sign a cohabitation agreement aren't married and may not intend to get married, or at least not just yet. They may become unmarried spouses or they may not. As a result, it's important to understand exactly how the legal status of unmarried spouses differs from the legal status of other unmarried couples and the legal status of married spouses before even thinking about the idea of a cohabitation agreement.

Married spouses have been legally married, either by a civil ceremony performed by a marriage commissioner or in a religious ceremony performed by a religious official. Married spouses who go to court are entitled to ask for orders under the ''[[Family Law Act]]'' about the division of property and debt and spousal support, and, if they have children, orders about parenting arrangements and contact.

An unmarried couple will become "spouses" for the purposes of the ''[[Family Law Act]]'' if:

#they've lived together in a marriage-like relationship for two years, or
#they've lived together in a marriage-like relationship for a shorter period of time and have a child together.

Unmarried spouses who have lived together for at least two years and go to court are entitled to ask for orders under the ''[[Family Law Act]]'' about the division of property and debt and spousal support, and, if they have children, orders about parenting arrangements and contact. Their rights are exactly the same as married spouses; these couples should also read the discussion on [[Marriage Agreements]] in the next section of this chapter.

However, unmarried spouses who have a child and have lived together for less than two years are only entitled to ask for orders about spousal support, and, if they have children, orders about parenting arrangements and contact. They can't ask for orders about the division of property and debt under the ''Family Law Act''.

In some situations, an unmarried couple can become spouses if they have been in a marriage-like relationship for two years, even if they do not live together in the same house all of the time. In other situations, an unmarried couple may not become spouses even after living together for two years, if they are not in a marriage-like relationship. If you are not sure about whether you would be a spouse for the purposes of the ''Family Law Act'', it is good idea to get legal advice about this issue as part of deciding whether you need an agreement.

An unmarried couple who aren't spouses under the ''[[Family Law Act]]'' can only ask for orders about parenting arrangements and contact. They can't ask for orders about the division of property and debt or spousal support under the ''Family Law Act''.

For the purposes of this discussion, the critical distinction between unmarried spouses who have lived together and other unmarried couples lies in the different legal issues that arise when these different sorts of relationship come to an end. Here's a summary:

::{| width="65%" class="wikitable"
!style="width: 20%"|
!style="width: 15%" align="center"|Unmarried Spouses (together for two years or more)
!style="width: 15%" align="center"|Unmarried Spouses (together for less than two years)
!style="width: 15%" align="center"|Other Unmarried Couples
|-
|align="center"|'''Divorce'''|| || ||
|-
|align="center"|'''Guardianship'''||align="center"|Yes||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Parental Responsibilities and Parenting Time'''||align="center"|Yes||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Contact'''||align="center"|Yes||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Child Support'''||align="center"|Yes||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Spousal Support||align="center"|Yes||align="center"|Yes||
|-
|align="center"|'''Family Property and Family Debt'''||align="center"|Yes|| ||
|-
|align="center"|'''Protection Orders'''||align="center"|Yes||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Financial Restraining Orders'''||align="center"|Yes|| ||
|}

Issues relating to the care and financial support of children born to unmarried people are fairly straightforward, since legal issues about children mostly depend on whether someone is a ''parent'', not on the nature of the relationship between the parties. Only married spouses and unmarried spouses who have lived together for at least two years or have a child together can make claims for spousal support, and only married spouses and unmarried spouses who have lived together for at least two years can make claims for the division of property and debt.

===Deciding whether a cohabitation agreement is appropriate===

The most common reason why a couple enters into cohabitation agreements is to protect their separate property and income, so that each person's property going into a relationship is preserved as much as possible if the relationship comes to an end. Sometimes one person wants to preserve property from claims by the other person; sometimes a person will want to protect property from the other person's debts. Generally speaking, most couples who are thinking about executing a cohabitation agreement want a "I'll keep what's mine, you'll keep what's yours" sort of deal, and that's fine.

A couple might also enter into a cohabitation agreement to address spousal support if the relationship comes to an end. Sometimes a person will want to guarantee a certain minimum payment, but most often people want to be protected from having to pay spousal support. That's fine too, it happens all the time.

Cohabitation agreements are usually entered into when:

*the relationship is expected to be a long one,
*one or both parties have a substantial amount of property going into the relationship,
*one or both parties have significant debts going into the relationship,
*one of the parties has significantly more income than the other,
*one or both parties expect to acquire property during the relationship from, for example, a business, an inheritance, a court award, a gift, or employment income,
*one or both parties are bringing a child into the relationship,
*the parties expect to have child within the first two years of living together, or
*the parties expect that spousal support may be an issue if the relationship ends.

Cohabitation agreements are generally not appropriate when:

*the couple are young,
*neither party has significant property or debt going into the relationship,
*neither party is bringing any children into the relationship and no children are expected right away, and
*both parties are working out of the home and expect to continue working out of the home.

On top of these considerations, the ''[[Family Law Act]]'' also says that an agreement made before the parties have separated cannot deal with:

#parental responsibilities and parenting time, or
#child support.

Cohabitation agreements can also be useful to set rules for how the parties will manage things during the relationship, although this type of cohabitation agreement is fairly rare. When a cohabitation agreement is needed to deal with those issues, the parties' financial positions may not be relevant.

The usual sort of things a household management type of cohabitation agreement might be intended to address include:

*Who will pay for the household expenses? Will each party pay for a specific set of bills, or will the parties share in all the bills in a fixed amount?
*Will the parties keep separate bank accounts, or will they have a joint account for household costs? If there is a joint account, how will each party contribute to the account?
*Who will do the household chores? Will each party be responsible for a list of particular tasks?
*How will children brought into the relationship be cared for? Will the other party assume any parenting tasks?

If, at the end of the day, a cohabitation agreement is appropriate and desirable, the parties will negotiate the terms of the agreement, and someone, whether a lawyer or one of the parties, will draft the written agreement. As with all family law agreements, it's important that both parties get independent legal advice about what exactly the agreement means, how it affects their present rights and responsibilities towards one another, and how it will affect those rights and responsibilities if their relationship comes to an end. Getting independent legal advice strengthens the agreement by preventing one spouse from saying "I didn't know what it meant!" if the agreement is challenged later on.

Finally, a good cohabitation agreement should specify what will happen if the parties marry. The agreement could continue in effect after the marriage, terminate when the parties are married, or be reviewed and revised by the parties at the time of the marriage. In any case, the prospect of marriage and its impact on the cohabitation agreement should be dealt with in some manner.

===Avoid do-it-yourself cohabitation agreement kits===

Staples, Chapters, London Drugs and other stores generally carry a wide range of DIY legal products, from doing your own will to getting your own divorce.

In my view most of these do-it-yourself kits are fine for most people most of the time. However, cohabitation agreements can be complicated and must be drafted with a good knowledge of family law, cohabitation agreements in particular, and the general law applicable in British Columbia. Using a do-it-yourself cohabitation agreement kit is really not a good strategy.

If you figure that you absolutely must have a cohabitation agreement, it's well worth spending $1,500 to $4,000 to have a lawyer draw it up correctly for you, rather than spending $15,000 to $40,000 on lawyer's fees down the road if the agreement is flawed.

==Legal and formal requirements of a cohabitation agreement==

The point of entering into a cohabitation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, a cohabitation agreement, just like any other family law agreement, must conform to certain basic rules, including the following:

*A cohabitation agreement must be in writing.
*The agreement must be signed by each party, and should be signed in the presence of a witness. Although an agreement made without a witness can still be valid and binding, it is a very good idea to have a witness (or witnesses) because she (or they) can confirm that the parties signed the agreement. In addition, sections 94 and 165 of the ''[[Family Law Act]]'' provide that a court cannot make an order about division of property and debt or spousal support that has been dealt with in a written, witnessed agreement between the parties unless the court has set aside the agreement.
*Neither party should be under a legal disability when signing the agreement, however children who are parents or spouses may enter into a binding agreement.
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a family law agreement, you might want to think about certain other principles of contract law such as these:

*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
*Both parties must make full and complete disclosure of their circumstances going into the agreement. This disclosure should include complete information about the parties' assets and debts, as well as information about the values of the assets and amounts owing on the debts.
*The parties cannot make an illegal bargain, that is, they can't make an agreement that obliges them to do something against the law.
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may be interpreted in favour of the party who didn't have the lawyer.
*The court will attempt to give effect to a contract wherever possible, that is, it will attempt to give meaning to the terms of a contract rather than declare it void.
*If a term of a cohabitation agreement is found to be invalid, only the invalid part of the agreement will stop being in effect. The remainder of the agreement will continue to be valid and binding on the parties.

Aside from these considerations, it's also important to remember that cohabitation agreements that deal with property and debts or issues like spousal support are usually only meant to be used when the relationship comes to an end, at some unknown time in the future. As a result, it can be difficult to guess what each party's situation will be like when the agreement begins to operate and guess whether it will still be appropriate and fair. Because of these problems, hiring the services of a lawyer to prepare a cohabitation agreement is highly recommended. Crafting a solid cohabitation agreement is a tricky business at the best of times.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

*[http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtWhenYouLiveTogether.php Legal Services Society Family Law Website: Making an agreement when you live together]
*[http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2, Making Agreements]
*[http://www.clicklaw.bc.ca/resource/1259 Canadian Bar Association BC Branch: Script on marriage agreements and cohabitation agreements]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], February 22, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}
[[Category:Family Law Agreements]]
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[[Category:JP Boyd on Family Law]]

Family Law Agreements

2017-02-23T00:58:29Z

Beatrice McCutcheon:

{{JPBOFL Start Chapter
| Related = [[Cohabitation Agreements|Cohabitation Agreements]]{{·}}[[Marriage Agreements|Marriage Agreements]]{{·}}[[Separation Agreements|Separation Agreements]]{{·}}[[Enforcing Family Law Agreements|Enforcing Agreements]]{{·}}[[Changing Family Law Agreements|Changing Agreements]]
}}
{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = more resources dealing with
|link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements]
}}A family law agreement — like a cohabitation agreement, a marriage agreement or a separation agreement — is a contract, just like the contract you might have with an employer or a landlord: each party promises to do something in exchange for something the other party promises to do, and both parties expect that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to settle the issues that come up when a relationship ends, although cohabitation agreements and marriage agreements are sometimes also used to settle how a relationship will be managed.

This chapter begins with an overview of family law agreements, and discusses the role they play during relationships and when relationships end. It also reviews the typical elements of a family law agreement and discusses some of the things you might wish to keep in mind when negotiating and drafting an agreement yourself.

The other sections of this chapter look at [[Cohabitation Agreements|cohabitation agreements]], [[Marriage Agreements|marriage agreements]] and [[Separation Agreements|separation agreements]] in more detail, and provide additional information about [[Enforcing Family Law Agreements|enforcing an agreement]] and [[Changing Family Law Agreements|changing an agreement]].

==Introduction==

People who sign a family law agreement when they marry or plan to marry are entering into a ''marriage agreement'', also called a pre-nuptial agreement. People who sign an agreement when they start living together or plan on living together are entering into a ''cohabitation agreement'', also called a living-together agreement. Under the ''Family Law Act'', most couples who live together for two years have the same rights on separation as couples who are married, so there is no significant difference between a marriage agreement and a cohabitation agreement. Many people make agreements that will be effective regardless of whether they are living together or married.

The usual point of agreements like these is to say what will happen if the relationship breaks down, although they can also talk about how things will be handled during the relationship or if one person dies during the relationship. The weird thing about marriage agreements and cohabitation agreements is that although they mostly talk about what will happen when a relationship ends, that may not happen for five years or 20 years, or it may never happen at all. As a result, it can be difficult to make plans based on what the family's circumstances might be like at some unknown point in the future when the relationship ends.

Married spouses, unmarried spouses and other unmarried couples who enter into an agreement after their relationship has broken down are entering into a ''separation agreement''. A separation agreement is a contract that describes how some or all of the legal issues arising from the end of the relationship have been resolved.

All of these different kinds of agreement are legal contracts that describe the parties' rights and obligations towards one another. They can deal with everything from who gets to keep the Kenny G boxed CD set, to where the children will live, to how the parties will deal with their mutual friends, to who gets to keep the Ford Pinto. While these agreements are usually all-inclusive, they don't have to be; some issues can be left aside for the courts to deal with. A couple might sign a ''property agreement'' dealing with just property issues, or a ''parenting agreement'' dealing with just the care of the children when their relationship has ended.

Despite the intentions of the couple when they signed an agreement, the terms of their agreement may still wind up being reviewed by the court, and possibly changed, if one of the parties later has a problem with the agreement. While the court will pay a great deal of respect to any written agreement, if an agreement was unfairly negotiated, is significantly unfair or becomes significantly unfair the court will generally be willing to look into things and perhaps set aside the agreement and make an order on different terms.

The ''[[Family Law Act]]'' encourages people to make agreements resolving their disputes rather than going to court. Section 6 of the act says this:

<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
<blockquote><blockquote><tt>(a) to resolve a family law dispute, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) respecting</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a matter that may be the subject of a family law dispute in the future,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the implementation of an agreement or order.</tt></blockquote></blockquote></blockquote>
<blockquote><tt>(2) A single agreement may be made respecting one or more matters.</tt></blockquote>
<blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote>

Under s. 214 of the act, the court may:

#set aside part of an agreement, without changing the rest of the agreement,
#incorporate all or part of an agreement into an order, or,
#make an order replacing all or part of an agreement.

The test the court must apply in deciding whether to set aside an agreement changes depending on the subject matter of the particular part of the agreement at issue. Some tests, like the test to make a child support order in place of an agreement on child support, are really easy; others, like the test to set aside an agreement on property division, are really hard. If you're asking the court to set aside an agreement, you must read the parts of the ''Family Law Act'' that deal with setting aside agreements.

==The role of family law agreements==

The fundamental purpose of all family law agreements is to settle an issue that has come up, or one that could come up, and might be the subject of a legal dispute.

It is almost always better to settle a dispute yourself rather than have the courts resolve your problem for you. It is usually cheaper to settle a dispute rather than take it to court, and negotiated settlements usually give you the best possible chance of maintaining a halfway decent relationship with each other in the future. Family law agreements also give you an incredibly flexible way of resolving your dispute. Your agreement can be tailored to suit your particular circumstances and needs, and can be far more creative in resolving a problem than a court order ever could be.

===Marriage and cohabitation agreements===

Marriage agreements and cohabitation agreements usually talk about what will happen if the parties' relationship breaks down, although they can sometimes talk about how things will be handled during the relationship. These sorts of agreements are normally made well before the parties marry or begin to live together, but can be made at any time during the parties' relationship.

It is important to know that you do not have to enter into a marriage or cohabitation agreement just because your partner wants you to, or just because you're about to marry or start living with someone. While your partner may want you to sign an agreement, you are under no legal obligation to do so. With or without a family law agreement, remedies are almost always available under the common law, the ''[[Divorce Act]]'', or the ''[[Family Law Act]]'' if problems crop up later on.

Marriage agreements and cohabitation agreements aren't always appropriate. Most people who enter into these agreements have been married before (once bitten, twice shy!), are coming into the relationship with children, are coming into the relationship with significant assets or significant debts, or expect to receive significant assets during the relationship. A young couple who have no significant assets or debts and no children don't necessarily have any particular need to sign a marriage agreement or a cohabitation agreement.

====During the relationship====

The sorts of terms people want to apply during their relationships are most often financial. That being said, family law agreements are incredibly flexible and can require the parties to do anything imaginable, from caring for the children during the work week, to having a certain number of holidays each year, to always wearing purple shirts on Thursdays, to sharing the household chores. Typically, however, people want to address issues like these:

*How will a joint bank account be managed? Will the parties contribute a fixed monthly amount to the joint account?
*How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared proportionately to the parties' incomes?
*How will unexpected expenses be paid for? Will both parties pay for household repairs?
*How will savings, RESPs, RRSPs and retirement funds be managed? Will each party be required to contribute a fixed monthly amount?
*How will each party's income during the relationship be handled? What will happen if someone gets an unexpected windfall, like a lottery win or an inheritance?

Some agreements do not deal with these issues, and some paint only a vague picture of the parties' respective financial responsibilities. Other agreements are mind-bogglingly detailed and cover even the tiniest details. In my view, unless someone is spectacularly anal retentive, the less said in a marriage agreement or cohabitation agreement about how a relationship will be managed, the better. You wouldn't want every aspect of your relationship governed by a legal contract ― that's exactly the sort of thing that encourages relationship breakdown.

====After the relationship====

The most common reason why people enter into a marriage agreement or a cohabitation agreement is to specify how property will be dealt with if the relationship comes to an end, although agreements like these can also deal with the payment or waiver of spousal support. Typically, however, these sorts of agreements just try to preserve a party's interest in an asset after the relationship has ended.

Agreements about the care of children or the payment of child support are only binding if they are made after separation or when the parties are about to separate.

===Separation agreements===

Separation agreements are entered into after a relationship has broken down. There is no need for the parties to have moved out or gotten a divorce when the agreement is made; in fact, when a couple is married it's usually best to deal with the separation agreement before you apply for a divorce, just in case you can't reach an agreement.

Separation agreements are always the product of negotiations between the parties and, hopefully, their lawyers. The goal of a separation agreement is to deal with all or some of the issues related to the separation in a way that both parties are as happy with as possible. Separation agreements usually deal with the following issues:

*How will the children be cared for? How will important parenting decisions about the children be made?
*If the children will be living mostly with one parent, how much time with the children will the other parent have?
*How much child support be paid, and which of the children's expenses will be shared between the parents?
*Should a party receive spousal support? If so, how much support should be paid and for how long?
*How will the family property be divided? Should the parties' excluded property be divided?
*How will the family debt be divided?

Separation agreements can cover everything that is a problem for a couple, even things that the court would not ordinarily deal with or be able to deal with.

Separation agreements are binding from the moment they are signed by both parties, unless the agreement says something different. They operate from the time they are made and, where children, child support, or spousal support are issues, they often continue to operate indefinitely into the future. Theoretically, a separation agreement will be binding on the parties until they die. In practice, however, most people stop relying on the agreement once the children have grown up, left home and become independent, even though their agreement continues to be legally binding on them.

==The elements of a family law agreement==

The point of a family law agreement is to make a legal contract that both parties intend to be bound by and that the court can and will enforce if a party doesn't live up to his or her obligations. In order to be legally binding and enforceable, agreements must be negotiated, drafted and signed in a certain way and include certain terms.

===Negotiating the terms of an agreement===

Family law agreements are about really important things like where the children will live, who will pay support to whom and how the parties will divide their property. As a result, the terms of the agreement are almost always the result of lots of talking and negotiating. It is critical that:

*each person has all of the information that is necessary, to figure out what's a good deal and what's a bad deal,
*each person understands his or her legal rights and obligations, to know what's a good deal and what's a bad deal,
*each person is able to express his or her views and contribute to negotiating the agreement, and
*there is no pressure to reach an agreement on either party, beyond the importance of reaching a reasonable agreement and saving money on legal fees and court costs.

Properly negotiating and entering into a family law agreement isn't simply a matter of putting the important parts on paper and signing the document. There must be fairness in the way an agreement is negotiated, fairness in the way it is drafted, and fairness in the way it is signed. The people who are negotiating the agreement must be able to understand the agreement, be capable of agreeing to it, and agree to it voluntarily. This is what s. 93(3) of the ''[[Family Law Act]]'' says about agreements for the division of property and debt:

<blockquote><tt>(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement ... only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

This is fairly straightforward:

*you have to make full disclosure of your income, your expenses, your assets and your debts, and any other information that is important to the agreement,
*you can't exploit the other party's weaknesses to get a good deal for yourself,
*you have to make sure that the other party understands exactly what the agreement means and how it will affect his or her life, both now and in the future, and,
*you can't force or pressure someone to sign the agreement, you can't cheat someone into signing the agreement, and the agreement must be reasonable.

Although s. 93 is about property, s. 164(3) says the same thing about agreements for spousal support, and I think that this is a pretty reasonable standard to set for all other family law agreements. If you don't want the court to throw out your agreement, you've got to take the time to do it right, and you've got to be fair and not take advantage of the other party.

The legal formalities common to all family law agreements are these:

*The parties to the agreement must provide full financial disclosure to each other and must be completely honest in describing their circumstances.
*The agreement must be in writing. (While oral agreements have been upheld by the courts, it can be very difficult to establish the terms of the agreement, and oral agreements cannot be enforced until a court has determined what the terms of the agreement are.)
*The parties can't be under any sort of legal disability such as insanity.
*The parties must both sign the agreement of their own free will, without unfair pressure by the other party.
*The agreement must be properly executed, which means being signed by each of the parties in the presence of at least one witness who is not a party to the agreement.

As a general rule, each person who enters into a family law agreement should get ''independent legal advice'', advice from his or her own lawyer, before the agreement is signed about:

*what the agreement means,
*what rights and obligations the agreement gives to each party,
*how the agreement does or doesn't limit the other legal remedies that might be available,
*how the agreement may affect each person over the short- and long-term, and,
*the options and remedies that would have been available if everyone had decided to go to court instead of settling things with an agreement.

Independent legal advice is important for two reasons: it ensures that the parties to the agreement know exactly what their rights and obligations are; and, it makes the agreement stronger by preventing a party from claiming later on that he or she didn't fully understand what the agreement meant or how it would impact him or her. If you really want to make sure that your agreement will stand the test of time, you've got to make sure that you and the other party have both seen a lawyer about the agreement!

===Drafting an agreement===

Lawyers often write family law agreements in a standard format using standard terms, tailored, of course, to the specific needs and circumstances of the parties. Just because family law agreements are often written using standard terms and standard language doesn't mean that an agreement using different wording will be set aside because it expresses things in a different way. As long as it is clear what the intentions of the parties are and as long as the agreement is fair and continues to be fair, the courts will usually uphold the agreement.

A British Columbia company called Self-Counsel Press publishes a variety of do-it-yourself agreement kits along with instructions for completing and executing them, or you might try [http://www.lawdepot.com LawDepot.com], an American company which says that it has family law agreement kits suitable for British Columbia.

There are still other resources available for free that might help, and your library might have a copy of the Self-Counsel Press materials available for loan. Guides to drafting family law agreements are also available at a branch of [http://www.courthouselibrary.ca/about/libraries.aspx Courthouse Libraries BC]; one of the very best is the ''[https://opac.courthouselibrary.ca/Catalogues/CatView.aspx?ReturnUrl=http%3a%2f%2fopac.courthouselibrary.ca%2fCatalogues%2fResults.aspx%3fRetName%3d2&RetName=2 Family Law Agreements: Annotated Precedents]'' published by the Continuing Legal Education Society of British Columbia.

What follows are examples of the typical elements of a family agreement, using the example of John Doe and Jane Doe, a married couple who are entering into a separation agreement. These examples are not complete and are provided only to illustrate a point; they should not be used to draft your own agreement!

====The introduction====

The introduction to an agreement, also known as the ''exordium'' (isn't that a great word?), is the portion of an agreement that identifies the parties to the agreement, provides a title for the agreement, and sets out the date on which the agreement is made. This section typically looks like this:

<blockquote><tt>THIS SEPARATION AGREEMENT is made on this the 1st day of March, 2013.</tt></blockquote>
<blockquote><tt>BETWEEN:</tt></blockquote>
<blockquote><blockquote><tt>Jane Doe 
of 123 King Street, Anytown, British Columbia 
("Jane")</tt></blockquote></blockquote>

<blockquote><tt>AND:</tt></blockquote>
<blockquote><blockquote><tt>John Doe 
of 456 Queen Street, Anytown, British Columbia 
("John")</tt></blockquote></blockquote>

====The recitals====

The recitals describe the parties' circumstances when the agreement is made in a summary sort of way. They include the basic facts of their relationship, give the names and birth dates of any children, describe the property and debts that the agreement deals with, and describe the parties' incomes, among other things.

The recitals are the foundation on which the agreement is built. They should be sufficient to tell a complete stranger why the parties entered not just into any agreement but this particular agreement. It is important that the recitals be as complete as possible because if anyone tries to challenge the agreement in the future, the recitals will set out the facts that were important to the parties at the time the agreement was made.

In the case of a separation agreement, the recitals often look something like this:

<blockquote><tt>WHEREAS:</tt></blockquote>
<blockquote><tt>A. Jane and John were married on August 1st, 1996 at Anytown, British Columbia.</tt></blockquote>
<blockquote><tt>B. There are two children of the marriage:</tt></blockquote>
<blockquote><blockquote><tt>i) Buckminster Elliot Doe, born on March 5th, 1998, and 
ii) Randall Eustace Doe, born on April 11th, 2000</tt></blockquote></blockquote>
<blockquote><tt>(together, "the Children").</tt></blockquote>
<blockquote><tt>C. Jane is presently employed part-time as a mason by ABC Construction Ltd. and has an annual income of approximately $34,000.</tt></blockquote>
<blockquote><tt>D. John is presently employed full-time as a chef by DEF Resorts Inc. and has an annual income of approximately $45,000.</tt></blockquote>
<blockquote><tt>E. Jane and John have lived separate and apart since December 25th, 2012 (the "Date of Separation"), when Jane left the family home.</tt></blockquote>
<blockquote><tt>F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had parenting time with the Children every other weekend from Friday after school until Sunday at 7:00pm.</tt></blockquote>

The rest of the recitals will continue in the same way. Other recitals might describe the make, model and value of each party's car, the address and value of the family home, the credits cards owned by the parties and the amounts owing on them, and so on. Essentially, every fact that is relevant to the agreement should be put into the recitals to the agreement.

By the way, the parts where you see a capitalized word in brackets, like <tt>(the "Date of Separation")</tt>, are called ''defined terms''. These are very helpful because you can use a defined term to refer to the same thing throughout an agreement. Instead of saying <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia</tt> every time you need to talk about that property, you could say <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia (the "Family Home")</tt> once, and whenever you need to mention the property after that you can just say <tt>the Family Home</tt>.

====The operative clauses====

The operative clauses of an agreement are the nuts and bolts of the settlement. They are the essential terms of the agreement and describe what each party's rights and obligations are. In the case of a separation agreement, the operative clauses might look like this:

<blockquote><tt>JANE AND JOHN AGREE THAT:</tt></blockquote>
<blockquote><tt>1. Jane and John will live separate from each other.</tt></blockquote>
<blockquote><tt>2. Neither party will molest, annoy or harass the other or his or her friends, relatives and associates.</tt></blockquote>
<blockquote><tt>3. Except as is specifically provided in this Agreement, Jane and John will each keep all property presently in their possession and control as their own, free and clear of any and all claim by the other.</tt></blockquote>
<blockquote><tt>THE CHILDREN</tt></blockquote>
<blockquote><tt>4. Jane and John are the guardians of the Children, and John will have the Children's primary residence.</tt></blockquote>
<blockquote><tt>5. Jane and John will exercise all parental responsibilities with respect to the Children in consultation with each other. Jane and John will make every effort to agree on decisions that need to be made concerning the Children, and will make their decisions in the best interests of the Children. However, in the event that Jane and John cannot agree on a particular decision, John will have the right to make that decision.</tt></blockquote>
<blockquote><tt>6. Jane will have parenting time with the Children every Wednesday night, from the end of school or 4:00pm until 8:00pm, and on every other weekend from the end of school or 4:00pm on Friday until the following Sunday at 8:00pm.</tt></blockquote>
<blockquote><tt>7. Jane will have additional parenting time with the Children for one-half of the Children's winter school holiday, the whole of the Children's spring school holiday, and for two two-week periods during the Children's summer school holiday.</tt></blockquote>
<blockquote><tt>CHILD SUPPORT</tt></blockquote>
<blockquote><tt>8. Jane will pay child support to John in the amount of $525 on the first day of each and every month, continuing for so long as the Children remain "children" as defined by the ''Family Law Act''.</tt></blockquote>
The rest of the operative clauses will continue in the same way. Other paragraphs might deal with specific property such as a car or the family home, the payment of debts, and the sharing of the children's expenses. The operative claims might also say who will pay what bills, whether and for how long spousal support will be paid, who will pay for the divorce if the couple are married, which laws will govern the interpretation of the agreement, and so on.

====The signatures====

The last part of a family law agreement is where each of the parties will sign their names in the presence of a witness. The parties can sign the agreement at the same time or separately, at different times and in different locations. Either way, each party's signature must be witnessed, and the witness, after seeing the party sign the agreement, must sign his or her name to the agreement. The witness usually provides some other information, typically his or her full name, address, and occupation. The page with the parties' signatures should include at least one operative paragraph of the agreement.

<blockquote><tt>SIGNED by Jane       ) 
on March 20, 2013,   ) 
at Anytown, BC,      ) 
in the presence of:  ) 
                     ) 
___________________  )  ___________________ 
Signature            )  JANE DOE 
___________________  ) 
Name                 ) 
___________________  ) 
Occupation           ) 
___________________  ) 
Address              ) 
___________________  )</tt></blockquote>

This would be repeated for John's signature and that of John's witness.

The witnesses to the parties' signatures do not become parties to the agreement and the agreement cannot be enforced against them. The signature of the witness simply says that he or she saw the particular party sign the agreement, in case someone ever denies signing the agreement.

It is also a good idea for each of the parties and the witnesses to initial each page of the agreement, other than the page with the parties' signatures.

For a quick summary of how to execute a family law agreement, see the ''How Do I?'' part of this resource for [[How Do I Execute a Family Law Agreement?]] Look under ''Family Law Agreements''.

==Negotiating considerations==

For many couples, negotiations begin and end over a cup of coffee at the local Tim Hortons. This is fine, providing that everyone is relatively friendly and the parties are approaching their negotiations from a relatively level footing. The court will respect the agreements that negotiations like these produce, on the basis that people are free to make their own bargains and to contract to whatever they like.

===The views of the court===

Problems can arise when negotiations aren't completely fair. In a 2003 case from the Supreme Court of Canada, ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303, the court held that family law agreements should not be considered under exactly the same standards that are applied to ordinary commercial contracts because family law agreements are usually negotiated at "a time of intense personal and emotional turmoil, in which one or both of the parties may be particularly vulnerable." Some of these vulnerabilities were described in a 2000 case from Ontario, ''[http://canlii.ca/t/1w9mm Leopold v. Leopold]'', 2000 CanLII 22708 (ON SC):

<blockquote>"One party may have power and dominance financially, or may possess power through influence over children ... often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other. The complex marital relationship is full of potential power imbalance."</blockquote>

In a 2009 case, ''[http://canlii.ca/t/22hw5 Rick v. Brandsema]'',[2009] 1 SCR 295 the Supreme Court of Canada added another factor to this list, incomplete or misleading financial disclosure.

Potential unfairness, then, can come from:

*exploiting a party's emotional or psychological vulnerability,
*influence over a party through dominance and oppression,
*control over the family finances,
*influence over the children's allegiances, or
*access to or control over the release of financial information.

Where unfairness is found, the court will be more likely to set aside an agreement or to make an order on terms different than those set out in an agreement. As a result, people negotiating family law agreements must take special care to ensure that everyone is on a level playing field and are negotiating from positions of relative equality. Here are some things that can help:

*'''Independent legal advice:''' Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the lawyers who provided the independent legal advice witness the parties' signatures on the agreement, and sign certificates of independent legal advice.
*'''Respect vulnerabilities:''' Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in his or her right mind, down tools and come back to the table later. Consider the need for counselling or therapy before continuing.
*'''Make full disclosure:''' Always make full disclosure of all financial facts, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment account balances, outstanding debts, property values, values of shares and options, art and jewelry appraisals, and so on.
*'''Never lie:''' Intentionally misleading someone about the value of something, the amount of a debt, past income and future income expectations, or any other relevant fact will always undermine the strength of an agreement. Be scrupulously honest and transparent at all times.
*'''Know the law:''' The ''Divorce Act'' and the ''Family Law Act'' say when and why spousal support and child support should be paid. The ''Divorce Act'' and the ''Family Law Act'' talk about how much time children should have with their parents. For married spouses and unmarried spouses, the ''Family Law Act'' talks about how property and debt should be divided. Know how the law treats these different subjects and ensure the agreement roughly reflects the law.

===The tests under the ''Family Law Act''===

Unfairness is a key element of the tests under the ''[[Family Law Act]]'' to set aside the parts of agreements about the division of property and debt and about spousal support, as we saw under s. 93(3), reproduced above.

Under s. 44(4) of the act, the court can set aside the parts of agreements about parenting arrangements if the parenting arrangements are not in the best interests of the child:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

The same test is used to set aside the parts of agreements about contact. Under s. 148(3), the court can set aside the parts of agreements about child support if it would make a different order:

<blockquote><tt>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.</tt></blockquote>

Section 150 is the part of the ''Family Law Act'' dealing with how child support is calculated.

==Drafting considerations==

First of all, it is always best to have a lawyer prepare any sort of contract, including family law agreements. While the Self-Counsel Press forms will likely be considered to be legally binding, a family law lawyer will be best able to advise you of the duties and obligations involved in the contract, the rights you will be giving up by entering into the contract, and other unexpected but critical issues the agreement might involve, such as:

*income tax consequences,
*the transfer of property,
*dividing property located outside of British Columbia, or,
*liabilities to third parties and creditors.

If you can't or don't want to hire a lawyer, here are a few things you will want to keep in mind.

===Don't use "legalese"===

Some people are tempted to use words that sound particularly legal, like using the word "issue" to refer to children. Avoid this at all costs, and try to use plain language to express the content of your agreement. Words like "issue" can have a particular legal meaning ― in this case first-generation, directly-descended heirs ― that are often at odds with what people think the term means. As a result, if you use legalese there is a risk that your contract won't wind up meaning quite what you think it means.

===Be as clear as possible===

Ask yourself these questions:

*What would a complete stranger think of your agreement?
*Would the stranger be able to understand what you mean?
*Are any parts of the agreement vague or capable of more than one meaning?
*Do you understand what the agreement means?

If a term of your agreement has more than one possible interpretation, it may lead to future conflict between yourself and the other party. If there are two cars, make sure each car is identified separately and distinctly, using defined terms like "Jerry's Ford Pinto" and "Mary's Pontiac Sunfire," and always refer to those cars in that way, and never just as "the car." If a term might mean more than one thing, change it to be more precise and more specific!

Also, remember that while you and your partner may know exactly what "the old spoons" might mean, a court may not, especially if there are a lot of different sets of spoons involved. It's best to be specific, like "the Teaspoons of the World silver spoon collection Jerry inherited from his grandmother Mabel."

===Avoid agreeing to agree===

An agreement that requires a further, future agreement — "the household furniture will be divided as Mary and Jerry will agree" — is open to further, future conflict. Whenever possible, try to limit an agreement to all that can be agreed upon at the moment and try to agree on as much as possible.

===Remember the loose ends===

It is always best to tie up any loose ends. This may require some thought as it isn't always obvious what else needs to be included. If a house has to be sold, for example, who will list it and hire the realtor? Who will live in it until the sale? How will the list price be chosen? Under what conditions will the list price be reduced? Are there any repairs or improvements that need to be made, and if so who will do them and how will they be paid for? How will the sale proceeds be dealt with? What debts will be paid from the sale proceeds? These things should all be specified, where at all possible.

===Be realistic===

You've got to live with the agreement; make sure it is something you can live with, not just now but in three or five years. Make sure that the obligations you must fulfill under the agreement are obligations that you can reasonably fulfill. Promising to pay off a credit card within a year, for example, isn't always the easiest thing to do and it isn't always practical.

Sometimes people who have separated are desperate to have done with it, to have a deal signed and finished. If you feel rushed into an agreement, step back and take two (or twenty-two) deep breaths. The world will not end if you take a moment or a week to think about something. It is critical that whatever you wind up agreeing to is something that you will still be okay with next month, next year, and in 10 more years. It can be very difficult to change an agreement in the future, especially one about division of property or debts, if only one of the parties wants the agreement to be changed. Be patient and take your time.

===Use sample clauses with caution===

Before copying a term from someone else's agreement into your own agreement, make sure you fully understand what that term means. A clause that suits one couple in one situation may be entirely inappropriate for another couple. It is all too easy to adopt a term that sounds good or appropriate, without fully considering what that term means. Be cautious, be prudent, be careful.


==Resources and links==
===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtAfterYouSeparate.php Legal Services Society's Family Law Website: Fact sheet on making an agreement after separation]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/whoCanHelpYouReachAnAgmt.php Legal Services Society's Family Law Website: Who can help you reach an agreement?]
* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2, Making Agreements]
*[http://www.clicklaw.bc.ca/resource/1259 Canadian Bar Association BC Branch: Script on marriage agreements and cohabitation agreements]
*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on Separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], February 22, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Family Law Agreements]]
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[[Category:JP Boyd on Family Law]]

Family Law Agreements

2017-02-23T00:53:58Z

Beatrice McCutcheon:

{{JPBOFL Start Chapter
| Related = [[Cohabitation Agreements|Cohabitation Agreements]]{{·}}[[Marriage Agreements|Marriage Agreements]]{{·}}[[Separation Agreements|Separation Agreements]]{{·}}[[Enforcing Family Law Agreements|Enforcing Agreements]]{{·}}[[Changing Family Law Agreements|Changing Agreements]]
}}
{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = more resources dealing with
|link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements]
}}A family law agreement — like a cohabitation agreement, a marriage agreement or a separation agreement — is a contract, just like the contract you might have with an employer or a landlord: each party promises to do something in exchange for something the other party promises to do, and both parties expect that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to settle the issues that come up when a relationship ends, although cohabitation agreements and marriage agreements are sometimes also used to settle how a relationship will be managed.

This chapter begins with an overview of family law agreements, and discusses the role they play during relationships and when relationships end. It also reviews the typical elements of a family law agreement and discusses some of the things you might wish to keep in mind when negotiating and drafting an agreement yourself.

The other sections of this chapter look at [[Cohabitation Agreements|cohabitation agreements]], [[Marriage Agreements|marriage agreements]] and [[Separation Agreements|separation agreements]] in more detail, and provide additional information about [[Enforcing Family Law Agreements|enforcing an agreement]] and [[Changing Family Law Agreements|changing an agreement]].

==Introduction==

People who sign a family law agreement when they marry or plan to marry are entering into a ''marriage agreement'', also called a pre-nuptial agreement. People who sign an agreement when they start living together or plan on living together are entering into a ''cohabitation agreement'', also called a living-together agreement. Under the ''Family Law Act'', most couples who live together for two years have the same rights on separation as couples who are married, so there is no significant difference between a marriage agreement and a cohabitation agreement. Many people make agreements that will be effective regardless of whether they are living together or married.

The usual point of agreements like these is to say what will happen if the relationship breaks down, although they can also talk about how things will be handled during the relationship or if one person dies during the relationship. The weird thing about marriage agreements and cohabitation agreements is that although they mostly talk about what will happen when a relationship ends, that may not happen for five years or 20 years, or it may never happen at all. As a result, it can be difficult to make plans based on what the family's circumstances might be like at some unknown point in the future when the relationship ends.

Married spouses, unmarried spouses and other unmarried couples who enter into an agreement after their relationship has broken down are entering into a ''separation agreement''. A separation agreement is a contract that describes how some or all of the legal issues arising from the end of the relationship have been resolved.

All of these different kinds of agreement are legal contracts that describe the parties' rights and obligations towards one another. They can deal with everything from who gets to keep the Kenny G boxed CD set, to where the children will live, to how the parties will deal with their mutual friends, to who gets to keep the Ford Pinto. While these agreements are usually all-inclusive, they don't have to be; some issues can be left aside for the courts to deal with. A couple might sign a ''property agreement'' dealing with just property issues, or a ''parenting agreement'' dealing with just the care of the children when their relationship has ended.

Despite the intentions of the couple when they signed an agreement, the terms of their agreement may still wind up being reviewed by the court, and possibly changed, if one of the parties later has a problem with the agreement. While the court will pay a great deal of respect to any written agreement, if an agreement was unfairly negotiated, is significantly unfair or becomes significantly unfair the court will generally be willing to look into things and perhaps set aside the agreement and make an order on different terms.

The ''[[Family Law Act]]'' encourages people to make agreements resolving their disputes rather than going to court. Section 6 of the act says this:

<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
<blockquote><blockquote><tt>(a) to resolve a family law dispute, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) respecting</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a matter that may be the subject of a family law dispute in the future,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the implementation of an agreement or order.</tt></blockquote></blockquote></blockquote>
<blockquote><tt>(2) A single agreement may be made respecting one or more matters.</tt></blockquote>
<blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote>

Under s. 214 of the act, the court may:

#set aside part of an agreement, without changing the rest of the agreement,
#incorporate all or part of an agreement into an order, or,
#make an order replacing all or part of an agreement.

The test the court must apply in deciding whether to set aside an agreement changes depending on the subject matter of the particular part of the agreement at issue. Some tests, like the test to make a child support order in place of an agreement on child support, are really easy; others, like the test to set aside an agreement on property division, are really hard. If you're asking the court to set aside an agreement, you must read the parts of the ''Family Law Act'' that deal with setting aside agreements.

==The role of family law agreements==

The fundamental purpose of all family law agreements is to settle an issue that has come up, or one that could come up, and might be the subject of a legal dispute.

It is almost always better to settle a dispute yourself rather than have the courts resolve your problem for you. It is usually cheaper to settle a dispute rather than take it to court, and negotiated settlements usually give you the best possible chance of maintaining a halfway decent relationship with each other in the future. Family law agreements also give you an incredibly flexible way of resolving your dispute. Your agreement can be tailored to suit your particular circumstances and needs, and can be far more creative in resolving a problem than a court order ever could be.

===Marriage and cohabitation agreements===

Marriage agreements and cohabitation agreements usually talk about what will happen if the parties' relationship breaks down, although they can sometimes talk about how things will be handled during the relationship. These sorts of agreements are normally made well before the parties marry or begin to live together, but can be made at any time during the parties' relationship.

It is important to know that you do not have to enter into a marriage or cohabitation agreement just because your partner wants you to, or just because you're about to marry or start living with someone. While your partner may want you to sign an agreement, you are under no legal obligation to do so. With or without a family law agreement, remedies are almost always available under the common law, the ''[[Divorce Act]]'', or the ''[[Family Law Act]]'' if problems crop up later on.

Marriage agreements and cohabitation agreements aren't always appropriate. Most people who enter into these agreements have been married before (once bitten, twice shy!), are coming into the relationship with children, are coming into the relationship with significant assets or significant debts, or expect to receive significant assets during the relationship. A young couple who have no significant assets or debts and no children don't necessarily have any particular need to sign a marriage agreement or a cohabitation agreement.

====During the relationship====

The sorts of terms people want to apply during their relationships are most often financial. That being said, family law agreements are incredibly flexible and can require the parties to do anything imaginable, from caring for the children during the work week, to having a certain number of holidays each year, to always wearing purple shirts on Thursdays, to sharing the household chores. Typically, however, people want to address issues like these:

*How will a joint bank account be managed? Will the parties contribute a fixed monthly amount to the joint account?
*How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared proportionately to the parties' incomes?
*How will unexpected expenses be paid for? Will both parties pay for household repairs?
*How will savings, RESPs, RRSPs and retirement funds be managed? Will each party be required to contribute a fixed monthly amount?
*How will each party's income during the relationship be handled? What will happen if someone gets an unexpected windfall, like a lottery win or an inheritance?

Some agreements do not deal with these issues, and some paint only a vague picture of the parties' respective financial responsibilities. Other agreements are mind-bogglingly detailed and cover even the tiniest details. In my view, unless someone is spectacularly anal retentive, the less said in a marriage agreement or cohabitation agreement about how a relationship will be managed, the better. You wouldn't want every aspect of your relationship governed by a legal contract ― that's exactly the sort of thing that encourages relationship breakdown.

====After the relationship====

The most common reason why people enter into a marriage agreement or a cohabitation agreement is to specify how property will be dealt with if the relationship comes to an end, although agreements like these can also deal with the payment or waiver of spousal support. Typically, however, these sorts of agreements just try to preserve a party's interest in an asset after the relationship has ended.

Agreements about the care of children or the payment of child support are only binding if they are made after separation or when the parties are about to separate.

===Separation agreements===

Separation agreements are entered into after a relationship has broken down. There is no need for the parties to have moved out or gotten a divorce when the agreement is made; in fact, when a couple is married it's usually best to deal with the separation agreement before you apply for a divorce, just in case you can't reach an agreement.

Separation agreements are always the product of negotiations between the parties and, hopefully, their lawyers. The goal of a separation agreement is to deal with all or some of the issues related to the separation in a way that both parties are as happy with as possible. Separation agreements usually deal with the following issues:

*How will the children be cared for? How will important parenting decisions about the children be made?
*If the children will be living mostly with one parent, how much time with the children will the other parent have?
*How much child support be paid, and which of the children's expenses will be shared between the parents?
*Should a party receive spousal support? If so, how much support should be paid and for how long?
*How will the family property be divided? Should the parties' excluded property be divided?
*How will the family debt be divided?

Separation agreements can cover everything that is a problem for a couple, even things that the court would not ordinarily deal with or be able to deal with.

Separation agreements are binding from the moment they are signed by both parties, unless the agreement says something different. They operate from the time they are made and, where children, child support, or spousal support are issues, they often continue to operate indefinitely into the future. Theoretically, a separation agreement will be binding on the parties until they die. In practice, however, most people stop relying on the agreement once the children have grown up, left home and become independent, even though their agreement continues to be legally binding on them.

==The elements of a family law agreement==

The point of a family law agreement is to make a legal contract that both parties intend to be bound by and that the court can and will enforce if a party doesn't live up to his or her obligations. In order to be legally binding and enforceable, agreements must be negotiated, drafted and signed in a certain way and include certain terms.

===Negotiating the terms of an agreement===

Family law agreements are about really important things like where the children will live, who will pay support to whom and how the parties will divide their property. As a result, the terms of the agreement are almost always the result of lots of talking and negotiating. It is critical that:

*each person has all of the information that is necessary, to figure out what's a good deal and what's a bad deal,
*each person understands his or her legal rights and obligations, to know what's a good deal and what's a bad deal,
*each person is able to express his or her views and contribute to negotiating the agreement, and
*there is no pressure to reach an agreement on either party, beyond the importance of reaching a reasonable agreement and saving money on legal fees and court costs.

Properly negotiating and entering into a family law agreement isn't simply a matter of putting the important parts on paper and signing the document. There must be fairness in the way an agreement is negotiated, fairness in the way it is drafted, and fairness in the way it is signed. The people who are negotiating the agreement must be able to understand the agreement, be capable of agreeing to it, and agree to it voluntarily. This is what s. 93(3) of the ''[[Family Law Act]]'' says about agreements for the division of property and debt:

<blockquote><tt>(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement ... only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

This is fairly straightforward:

*you have to make full disclosure of your income, your expenses, your assets and your debts, and any other information that is important to the agreement,
*you can't exploit the other party's weaknesses to get a good deal for yourself,
*you have to make sure that the other party understands exactly what the agreement means and how it will affect his or her life, both now and in the future, and,
*you can't force or pressure someone to sign the agreement, you can't cheat someone into signing the agreement, and the agreement must be reasonable.

Although s. 93 is about property, s. 164(3) says the same thing about agreements for spousal support, and I think that this is a pretty reasonable standard to set for all other family law agreements. If you don't want the court to throw out your agreement, you've got to take the time to do it right, and you've got to be fair and not take advantage of the other party.

The legal formalities common to all family law agreements are these:

*The parties to the agreement must provide full financial disclosure to each other and must be completely honest in describing their circumstances.
*The agreement must be in writing. (While oral agreements have been upheld by the courts, it can be very difficult to establish the terms of the agreement, and oral agreements cannot be enforced until a court has determined what the terms of the agreement are.)
*The parties can't be under any sort of legal disability such as insanity.
*The parties must both sign the agreement of their own free will, without unfair pressure by the other party.
*The agreement must be properly executed, which means being signed by each of the parties in the presence of at least one witness who is not a party to the agreement.

As a general rule, each person who enters into a family law agreement should get ''independent legal advice'', advice from his or her own lawyer, before the agreement is signed about:

*what the agreement means,
*what rights and obligations the agreement gives to each party,
*how the agreement does or doesn't limit the other legal remedies that might be available,
*how the agreement may affect each person over the short- and long-term, and,
*the options and remedies that would have been available if everyone had decided to go to court instead of settling things with an agreement.

Independent legal advice is important for two reasons: it ensures that the parties to the agreement know exactly what their rights and obligations are; and, it makes the agreement stronger by preventing a party from claiming later on that he or she didn't fully understand what the agreement meant or how it would impact him or her. If you really want to make sure that your agreement will stand the test of time, you've got to make sure that you and the other party have both seen a lawyer about the agreement!

===Drafting an agreement===

Lawyers often write family law agreements in a standard format using standard terms, tailored, of course, to the specific needs and circumstances of the parties. Just because family law agreements are often written using standard terms and standard language doesn't mean that an agreement using different wording will be set aside because it expresses things in a different way. As long as it is clear what the intentions of the parties are and as long as the agreement is fair and continues to be fair, the courts will usually uphold the agreement.

A British Columbia company called Self-Counsel Press publishes a variety of do-it-yourself agreement kits along with instructions for completing and executing them, or you might try [http://www.lawdepot.com LawDepot.com], an American company which says that it has family law agreement kits suitable for British Columbia.

There are still other resources available for free that might help, and your library might have a copy of the Self-Counsel Press materials available for loan. Guides to drafting family law agreements are also available at a branch of [http://www.courthouselibrary.ca/about/libraries.aspx Courthouse Libraries BC]; one of the very best is the ''[http://opac.courthouselibrary.ca/Catalogues/CatView.aspx?id=7189 Family Law Agreements Manual]'' published by the Continuing Legal Education Society of British Columbia.

What follows are examples of the typical elements of a family agreement, using the example of John Doe and Jane Doe, a married couple who are entering into a separation agreement. These examples are not complete and are provided only to illustrate a point; they should not be used to draft your own agreement!

====The introduction====

The introduction to an agreement, also known as the ''exordium'' (isn't that a great word?), is the portion of an agreement that identifies the parties to the agreement, provides a title for the agreement, and sets out the date on which the agreement is made. This section typically looks like this:

<blockquote><tt>THIS SEPARATION AGREEMENT is made on this the 1st day of March, 2013.</tt></blockquote>
<blockquote><tt>BETWEEN:</tt></blockquote>
<blockquote><blockquote><tt>Jane Doe 
of 123 King Street, Anytown, British Columbia 
("Jane")</tt></blockquote></blockquote>

<blockquote><tt>AND:</tt></blockquote>
<blockquote><blockquote><tt>John Doe 
of 456 Queen Street, Anytown, British Columbia 
("John")</tt></blockquote></blockquote>

====The recitals====

The recitals describe the parties' circumstances when the agreement is made in a summary sort of way. They include the basic facts of their relationship, give the names and birth dates of any children, describe the property and debts that the agreement deals with, and describe the parties' incomes, among other things.

The recitals are the foundation on which the agreement is built. They should be sufficient to tell a complete stranger why the parties entered not just into any agreement but this particular agreement. It is important that the recitals be as complete as possible because if anyone tries to challenge the agreement in the future, the recitals will set out the facts that were important to the parties at the time the agreement was made.

In the case of a separation agreement, the recitals often look something like this:

<blockquote><tt>WHEREAS:</tt></blockquote>
<blockquote><tt>A. Jane and John were married on August 1st, 1996 at Anytown, British Columbia.</tt></blockquote>
<blockquote><tt>B. There are two children of the marriage:</tt></blockquote>
<blockquote><blockquote><tt>i) Buckminster Elliot Doe, born on March 5th, 1998, and 
ii) Randall Eustace Doe, born on April 11th, 2000</tt></blockquote></blockquote>
<blockquote><tt>(together, "the Children").</tt></blockquote>
<blockquote><tt>C. Jane is presently employed part-time as a mason by ABC Construction Ltd. and has an annual income of approximately $34,000.</tt></blockquote>
<blockquote><tt>D. John is presently employed full-time as a chef by DEF Resorts Inc. and has an annual income of approximately $45,000.</tt></blockquote>
<blockquote><tt>E. Jane and John have lived separate and apart since December 25th, 2012 (the "Date of Separation"), when Jane left the family home.</tt></blockquote>
<blockquote><tt>F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had parenting time with the Children every other weekend from Friday after school until Sunday at 7:00pm.</tt></blockquote>

The rest of the recitals will continue in the same way. Other recitals might describe the make, model and value of each party's car, the address and value of the family home, the credits cards owned by the parties and the amounts owing on them, and so on. Essentially, every fact that is relevant to the agreement should be put into the recitals to the agreement.

By the way, the parts where you see a capitalized word in brackets, like <tt>(the "Date of Separation")</tt>, are called ''defined terms''. These are very helpful because you can use a defined term to refer to the same thing throughout an agreement. Instead of saying <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia</tt> every time you need to talk about that property, you could say <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia (the "Family Home")</tt> once, and whenever you need to mention the property after that you can just say <tt>the Family Home</tt>.

====The operative clauses====

The operative clauses of an agreement are the nuts and bolts of the settlement. They are the essential terms of the agreement and describe what each party's rights and obligations are. In the case of a separation agreement, the operative clauses might look like this:

<blockquote><tt>JANE AND JOHN AGREE THAT:</tt></blockquote>
<blockquote><tt>1. Jane and John will live separate from each other.</tt></blockquote>
<blockquote><tt>2. Neither party will molest, annoy or harass the other or his or her friends, relatives and associates.</tt></blockquote>
<blockquote><tt>3. Except as is specifically provided in this Agreement, Jane and John will each keep all property presently in their possession and control as their own, free and clear of any and all claim by the other.</tt></blockquote>
<blockquote><tt>THE CHILDREN</tt></blockquote>
<blockquote><tt>4. Jane and John are the guardians of the Children, and John will have the Children's primary residence.</tt></blockquote>
<blockquote><tt>5. Jane and John will exercise all parental responsibilities with respect to the Children in consultation with each other. Jane and John will make every effort to agree on decisions that need to be made concerning the Children, and will make their decisions in the best interests of the Children. However, in the event that Jane and John cannot agree on a particular decision, John will have the right to make that decision.</tt></blockquote>
<blockquote><tt>6. Jane will have parenting time with the Children every Wednesday night, from the end of school or 4:00pm until 8:00pm, and on every other weekend from the end of school or 4:00pm on Friday until the following Sunday at 8:00pm.</tt></blockquote>
<blockquote><tt>7. Jane will have additional parenting time with the Children for one-half of the Children's winter school holiday, the whole of the Children's spring school holiday, and for two two-week periods during the Children's summer school holiday.</tt></blockquote>
<blockquote><tt>CHILD SUPPORT</tt></blockquote>
<blockquote><tt>8. Jane will pay child support to John in the amount of $525 on the first day of each and every month, continuing for so long as the Children remain "children" as defined by the ''Family Law Act''.</tt></blockquote>
The rest of the operative clauses will continue in the same way. Other paragraphs might deal with specific property such as a car or the family home, the payment of debts, and the sharing of the children's expenses. The operative claims might also say who will pay what bills, whether and for how long spousal support will be paid, who will pay for the divorce if the couple are married, which laws will govern the interpretation of the agreement, and so on.

====The signatures====

The last part of a family law agreement is where each of the parties will sign their names in the presence of a witness. The parties can sign the agreement at the same time or separately, at different times and in different locations. Either way, each party's signature must be witnessed, and the witness, after seeing the party sign the agreement, must sign his or her name to the agreement. The witness usually provides some other information, typically his or her full name, address, and occupation. The page with the parties' signatures should include at least one operative paragraph of the agreement.

<blockquote><tt>SIGNED by Jane       ) 
on March 20, 2013,   ) 
at Anytown, BC,      ) 
in the presence of:  ) 
                     ) 
___________________  )  ___________________ 
Signature            )  JANE DOE 
___________________  ) 
Name                 ) 
___________________  ) 
Occupation           ) 
___________________  ) 
Address              ) 
___________________  )</tt></blockquote>

This would be repeated for John's signature and that of John's witness.

The witnesses to the parties' signatures do not become parties to the agreement and the agreement cannot be enforced against them. The signature of the witness simply says that he or she saw the particular party sign the agreement, in case someone ever denies signing the agreement.

It is also a good idea for each of the parties and the witnesses to initial each page of the agreement, other than the page with the parties' signatures.

For a quick summary of how to execute a family law agreement, see the ''How Do I?'' part of this resource for [[How Do I Execute a Family Law Agreement?]] Look under ''Family Law Agreements''.

==Negotiating considerations==

For many couples, negotiations begin and end over a cup of coffee at the local Tim Hortons. This is fine, providing that everyone is relatively friendly and the parties are approaching their negotiations from a relatively level footing. The court will respect the agreements that negotiations like these produce, on the basis that people are free to make their own bargains and to contract to whatever they like.

===The views of the court===

Problems can arise when negotiations aren't completely fair. In a 2003 case from the Supreme Court of Canada, ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303, the court held that family law agreements should not be considered under exactly the same standards that are applied to ordinary commercial contracts because family law agreements are usually negotiated at "a time of intense personal and emotional turmoil, in which one or both of the parties may be particularly vulnerable." Some of these vulnerabilities were described in a 2000 case from Ontario, ''[http://canlii.ca/t/1w9mm Leopold v. Leopold]'', 2000 CanLII 22708 (ON SC):

<blockquote>"One party may have power and dominance financially, or may possess power through influence over children ... often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other. The complex marital relationship is full of potential power imbalance."</blockquote>

In a 2009 case, ''[http://canlii.ca/t/22hw5 Rick v. Brandsema]'',[2009] 1 SCR 295 the Supreme Court of Canada added another factor to this list, incomplete or misleading financial disclosure.

Potential unfairness, then, can come from:

*exploiting a party's emotional or psychological vulnerability,
*influence over a party through dominance and oppression,
*control over the family finances,
*influence over the children's allegiances, or
*access to or control over the release of financial information.

Where unfairness is found, the court will be more likely to set aside an agreement or to make an order on terms different than those set out in an agreement. As a result, people negotiating family law agreements must take special care to ensure that everyone is on a level playing field and are negotiating from positions of relative equality. Here are some things that can help:

*'''Independent legal advice:''' Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the lawyers who provided the independent legal advice witness the parties' signatures on the agreement, and sign certificates of independent legal advice.
*'''Respect vulnerabilities:''' Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in his or her right mind, down tools and come back to the table later. Consider the need for counselling or therapy before continuing.
*'''Make full disclosure:''' Always make full disclosure of all financial facts, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment account balances, outstanding debts, property values, values of shares and options, art and jewelry appraisals, and so on.
*'''Never lie:''' Intentionally misleading someone about the value of something, the amount of a debt, past income and future income expectations, or any other relevant fact will always undermine the strength of an agreement. Be scrupulously honest and transparent at all times.
*'''Know the law:''' The ''Divorce Act'' and the ''Family Law Act'' say when and why spousal support and child support should be paid. The ''Divorce Act'' and the ''Family Law Act'' talk about how much time children should have with their parents. For married spouses and unmarried spouses, the ''Family Law Act'' talks about how property and debt should be divided. Know how the law treats these different subjects and ensure the agreement roughly reflects the law.

===The tests under the ''Family Law Act''===

Unfairness is a key element of the tests under the ''[[Family Law Act]]'' to set aside the parts of agreements about the division of property and debt and about spousal support, as we saw under s. 93(3), reproduced above.

Under s. 44(4) of the act, the court can set aside the parts of agreements about parenting arrangements if the parenting arrangements are not in the best interests of the child:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

The same test is used to set aside the parts of agreements about contact. Under s. 148(3), the court can set aside the parts of agreements about child support if it would make a different order:

<blockquote><tt>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.</tt></blockquote>

Section 150 is the part of the ''Family Law Act'' dealing with how child support is calculated.

==Drafting considerations==

First of all, it is always best to have a lawyer prepare any sort of contract, including family law agreements. While the Self-Counsel Press forms will likely be considered to be legally binding, a family law lawyer will be best able to advise you of the duties and obligations involved in the contract, the rights you will be giving up by entering into the contract, and other unexpected but critical issues the agreement might involve, such as:

*income tax consequences,
*the transfer of property,
*dividing property located outside of British Columbia, or,
*liabilities to third parties and creditors.

If you can't or don't want to hire a lawyer, here are a few things you will want to keep in mind.

===Don't use "legalese"===

Some people are tempted to use words that sound particularly legal, like using the word "issue" to refer to children. Avoid this at all costs, and try to use plain language to express the content of your agreement. Words like "issue" can have a particular legal meaning ― in this case first-generation, directly-descended heirs ― that are often at odds with what people think the term means. As a result, if you use legalese there is a risk that your contract won't wind up meaning quite what you think it means.

===Be as clear as possible===

Ask yourself these questions:

*What would a complete stranger think of your agreement?
*Would the stranger be able to understand what you mean?
*Are any parts of the agreement vague or capable of more than one meaning?
*Do you understand what the agreement means?

If a term of your agreement has more than one possible interpretation, it may lead to future conflict between yourself and the other party. If there are two cars, make sure each car is identified separately and distinctly, using defined terms like "Jerry's Ford Pinto" and "Mary's Pontiac Sunfire," and always refer to those cars in that way, and never just as "the car." If a term might mean more than one thing, change it to be more precise and more specific!

Also, remember that while you and your partner may know exactly what "the old spoons" might mean, a court may not, especially if there are a lot of different sets of spoons involved. It's best to be specific, like "the Teaspoons of the World silver spoon collection Jerry inherited from his grandmother Mabel."

===Avoid agreeing to agree===

An agreement that requires a further, future agreement — "the household furniture will be divided as Mary and Jerry will agree" — is open to further, future conflict. Whenever possible, try to limit an agreement to all that can be agreed upon at the moment and try to agree on as much as possible.

===Remember the loose ends===

It is always best to tie up any loose ends. This may require some thought as it isn't always obvious what else needs to be included. If a house has to be sold, for example, who will list it and hire the realtor? Who will live in it until the sale? How will the list price be chosen? Under what conditions will the list price be reduced? Are there any repairs or improvements that need to be made, and if so who will do them and how will they be paid for? How will the sale proceeds be dealt with? What debts will be paid from the sale proceeds? These things should all be specified, where at all possible.

===Be realistic===

You've got to live with the agreement; make sure it is something you can live with, not just now but in three or five years. Make sure that the obligations you must fulfill under the agreement are obligations that you can reasonably fulfill. Promising to pay off a credit card within a year, for example, isn't always the easiest thing to do and it isn't always practical.

Sometimes people who have separated are desperate to have done with it, to have a deal signed and finished. If you feel rushed into an agreement, step back and take two (or twenty-two) deep breaths. The world will not end if you take a moment or a week to think about something. It is critical that whatever you wind up agreeing to is something that you will still be okay with next month, next year, and in 10 more years. It can be very difficult to change an agreement in the future, especially one about division of property or debts, if only one of the parties wants the agreement to be changed. Be patient and take your time.

===Use sample clauses with caution===

Before copying a term from someone else's agreement into your own agreement, make sure you fully understand what that term means. A clause that suits one couple in one situation may be entirely inappropriate for another couple. It is all too easy to adopt a term that sounds good or appropriate, without fully considering what that term means. Be cautious, be prudent, be careful.


==Resources and links==
===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtAfterYouSeparate.php Legal Services Society's Family Law Website: Fact sheet on making an agreement after separation]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/whoCanHelpYouReachAnAgmt.php Legal Services Society's Family Law Website: Who can help you reach an agreement?]
* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2, Making Agreements]
*[http://www.clicklaw.bc.ca/resource/1259 Canadian Bar Association BC Branch: Script on marriage agreements and cohabitation agreements]
*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on Separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Beatrice McCutcheon]], February 22, 2017}}

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[[Category:Family Law Agreements]]
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[[Category:JP Boyd on Family Law]]

Family Law Agreements

2014-09-30T17:18:45Z

Beatrice McCutcheon: /* Links */

{{JPBOFL Start Chapter
| Related = [[Cohabitation Agreements|Cohabitation Agreements]]{{·}}[[Marriage Agreements|Marriage Agreements]]{{·}}[[Separation Agreements|Separation Agreements]]{{·}}[[Enforcing Family Law Agreements|Enforcing Agreements]]{{·}}[[Changing Family Law Agreements|Changing Agreements]]
}}
{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Barbara Nelson|Barbara Nelson, QC]] and [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = more resources dealing with
|link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements]
}}A family law agreement — like a cohabitation agreement, a marriage agreement or a separation agreement — is a contract, just like the contract you might have with an employer or a landlord: each party promises to do something in exchange for something the other party promises to do, and both parties expect that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to settle the issues that come up when a relationship ends, although cohabitation agreements and marriage agreements are sometimes also used to settle how a relationship will be managed.

This chapter begins with an overview of family law agreements, and discusses the role they play during relationships and when relationships end. It also reviews the typical elements of a family law agreement and discuss some of the things you might wish to keep in mind when negotiating and drafting an agreement yourself.

The other sections of this chapter look at [[Cohabitation Agreements|cohabitation agreements]], [[Marriage Agreements|marriage agreements]] and [[Separation Agreements|separation agreements]] in more detail, and provide additional information about [[Enforcing Family Law Agreements|enforcing an agreement]] and [[Changing Family Law Agreements|changing an agreement]].

==Introduction==

People who sign a family law agreement when they marry or plan to marry are entering into a ''marriage agreement'', also called a pre-nuptial agreement. People who sign an agreement when they start living together or plan on living together are entering into a ''cohabitation agreement'', also called a living-together agreement.

The usual point of agreements like these is to say what will happen if the relationship breaks down, although they can also talk about how things will be handled during the relationship. The weird thing about marriage agreements and cohabitation agreements is that although they mostly talk about what will happen when a relationship ends, that may not happen for five years or 20 years, or it may never happen at all. As a result, it can be difficult to make plans based on what the family's circumstances might be like at some unknown point in the future when the relationship ends.

Married spouses, unmarried spouses and other unmarried couples who enter into an agreement after their relationship has broken down are entering into a ''separation agreement''. A separation agreement is a contract that describes how some or all of the legal issues arising from the end of the relationship have been resolved.

All of these different kinds of agreement are legal contracts that describe the parties' rights and obligations towards one another. They can deal with everything from who gets to keep the Kenny G boxed CD set, to where the children will live, to how the parties will deal with their mutual friends, to who gets to keep the Ford Pinto. While these agreements are usually all-inclusive, they don't have to be; some issues can be left aside for the courts to deal with. A couple might sign a ''property agreement'' dealing with just property issues, or a ''parenting agreement'' dealing with just the care of the children when their relationship has ended.

Despite the intentions of the couple when they signed an agreement, the terms of their agreement may still wind up being reviewed by the court, and possibly changed, if one of the parties later has a problem with the agreement. While the court will pay a great deal of respect to any written agreement, if an agreement was unfairly negotiated, is unfair or becomes unfair the court will generally be willing to look into things and perhaps set aside the agreement and make an order on different terms.

The ''[[Family Law Act]]'' encourages people to make agreements resolving their disputes rather than going to court. Section 6 of the act says this:

<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
<blockquote><blockquote><tt>(a) to resolve a family law dispute, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) respecting</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a matter that may be the subject of a family law dispute in the future,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the implementation of an agreement or order.</tt></blockquote></blockquote></blockquote>
<blockquote><tt>(2) A single agreement may be made respecting one or more matters.</tt></blockquote>
<blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote>

Under s. 214 of the act, the court may:

#set aside part of an agreement, without changing the rest of the agreement,
#incorporate all or part of an agreement into an order, or,
#make an order replacing all or part of an agreement.

The test the court must apply in deciding whether to set aside an agreement changes depending on the subject matter of the particular part of the agreement at issue. Some tests, like the test to make a child support order in place of an agreement on child support, are really easy; others, like the test to set aside an agreement on property division, are really hard. If you're asking the court to set aside an agreement, you must read the parts of the ''Family Law Act'' that deal with setting aside agreements.

==The role of family law agreements==

The fundamental purpose of all family law agreements is to settle an issue that has come up, or one that could come up, and might be the subject of a legal dispute.

It is almost always better to settle a dispute yourself rather than have the courts resolve your problem for you. It is usually cheaper to settle a dispute rather than take it to court, and negotiated settlements usually give you the best possible chance of maintaining a halfway decent relationship with each other in the future. Family law agreements also give you an incredibly flexible way of resolving your dispute. Your agreement can be tailored to suit your particular circumstances and needs, and can be far more creative in resolving a problem than a court order ever could be.

===Marriage and cohabitation agreements===

Marriage agreements and cohabitation agreements usually talk about what will happen if the parties' relationship breaks down, although they can sometimes talk about how things will be handled during the relationship. These sorts of agreements are normally made well before the parties marry or begin to live together, but can be made at any time during the parties' relationship.

It is important to know that you do not have to enter into a marriage or cohabitation agreement just because your partner wants you to, or just because you're about to marry or start living with someone. While your partner may want you to sign an agreement, you are under no legal obligation to do so. With or without a family law agreement, remedies are almost always available under the common law, the ''[[Divorce Act]]'', or the ''[[Family Law Act]]'' if problems crop up later on.

Marriage agreements and cohabitation agreements aren't always appropriate. Most people who enter into these agreements have been married before (once bitten, twice shy!), are coming into the relationship with children, are coming into the relationship with significant assets or significant debts, or expect to receive significant assets during the relationship. A young couple who have no significant assets and no children don't necessarily have any particular need to sign a marriage agreement or a cohabitation agreement.

====During the relationship====

The sorts of terms people want to apply during their relationships are most often financial. That being said, family law agreements are incredibly flexible and can require the parties to do anything imaginable, from caring for the children during the work week, to having a certain number of holidays each year, to always wearing purple shirts on Thursdays, to sharing the household chores. Typically, however, people want to address issues like these:

*How will a joint bank account be managed? Will the parties contribute a fixed monthly amount to the joint account?
*How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared proportionately to the parties' incomes?
*How will unexpected expenses be paid for? Will both parties pay for household repairs?
*How will savings, RESPs, RRSPs and retirement funds be managed? Will each party be required to contribute a fixed monthly amount?
*How will each party's income during the relationship be handled? What will happen if someone gets an unexpected windfall, like a lottery win or an inheritance?

Some agreements do not deal with these issues, and some paint only a vague picture of the parties' respective financial responsibilities. Other agreements are mind-bogglingly detailed and cover even the tiniest details. In my view, unless someone is spectacularly anal retentive, the less said in a marriage agreement or cohabitation agreement about how a relationship will be managed, the better. You wouldn't want every aspect of your relationship governed by a legal contract ― that's exactly the sort of thing that encourages relationship breakdown.

====After the relationship====

The most common reason why people enter into a marriage agreement or a cohabitation agreement is to specify how property will be dealt with if the relationship comes to an end, although agreements like these can also deal with the payment or waiver of spousal support. Typically, however, these sorts of agreements just try to preserve a party's interest in an asset after the relationship has ended.

Agreements about the care of children or the payment of child support are only binding if they are made after separation or when the parties are about to separate.

===Separation agreements===

Separation agreements are entered into after a relationship has broken down. There is no need for the parties to have moved out or gotten a divorce when the agreement is made; in fact, when a couple is married it's usually best to deal with the separation agreement before you apply for a divorce, just in case you can't reach an agreement.

Separation agreements are always the product of negotiations between the parties and, hopefully, their lawyers. The goal of a separation agreement is to deal with all or some of the issues related to the separation in a way that both parties are as happy with as possible. Separation agreements usually deal with the following issues:

*How will the children be cared for? How will important parenting decisions about the children be made?
*If the children will be living mostly with one parent, how much time with the children will the other parent have?
*How much child support be paid, and which of the children's expenses will be shared between the parents?
*Should a party receive spousal support? If so, how much support should be paid and for how long?
*How will the family property be divided? Should the parties' excluded property be divided?
*How will the family debt be divided?

Separation agreements can cover everything that is a problem for a couple, even things that the court would not ordinarily deal with or be able to deal with.

Separation agreements are binding from the moment they are signed by both parties, unless the agreement says something different. They operate from the time they are made and, where children, child support, or spousal support are issues, they often continue to operate indefinitely into the future. Theoretically, a separation agreement will be binding on the parties until they die. In practice, however, most people stop relying on the agreement once the children have grown up, left home and become independent, even though their agreement continues to be legally binding on them.

==The elements of a family law agreement==

The point of a family law agreement is to make a legal contract that both parties intend to be bound by and that the court can and will enforce if a party doesn't live up to his or her obligations. In order to be legally binding and enforceable, agreements must be negotiated, drafted and signed in a certain way and include certain terms.

===Negotiating the terms of an agreement===

Family law agreements are about really important things like where the children will live, who will pay support to whom and how the parties will divide their property. As a result, the terms of the agreement are almost always the result of lots of talking and negotiating. It is critical that:

*each person has all of the information that is necessary, to figure out what's a good deal and what's a bad deal,
*each person understands his or her legal rights and obligations, to know what's a good deal and what's a bad deal,
*each person is able to express his or her views and contribute to negotiating the agreement, and
*there is no pressure to reach an agreement on either party, beyond the importance of reaching a reasonable agreement and saving money on legal fees and court costs.

Properly negotiating and entering into a family law agreement isn't simply a matter of putting the important parts on paper and signing the document. There must be fairness in the way an agreement is negotiated, fairness in the way it is drafted, and fairness in the way it is signed. The people who are negotiating the agreement must be able to understand the agreement, be capable of agreeing to it, and agree to it voluntarily. This is what s. 93(3) of the ''[[Family Law Act]]'' says about agreements for the division of property and debt:

<blockquote><tt>(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement ... only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

This is fairly straightforward:

*you have to make full disclosure of your income, your expenses, your assets and your debts, and any other information that is important to the agreement,
*you can't exploit the other party's weaknesses to get a good deal for yourself,
*you have to make sure that the other party understands exactly what the agreement means and how it will affect his or her life, both now and in the future, and,
*you can't force or pressure someone to sign the agreement, you can't cheat someone into signing the agreement, and the agreement must be reasonable.

Although s. 93 is about property, s. 164(3) says the same thing about agreements for spousal support, and I think that this is a pretty reasonable standard to set for all other family law agreements. If you don't want the court to throw out your agreement, you've got to take the time to do it right, and you've got to be fair and not take advantage of the other party.

The legal formalities common to all family law agreements are these:

*The parties to the agreement must provide full financial disclosure to each other and must be completely honest in describing their circumstances.
*The agreement must be in writing. (While oral agreements have been upheld by the courts, it can be very difficult to establish the terms of the agreement, and oral agreements cannot be enforced until a court has determined what the terms of the agreement are.)
*The parties can't be under any sort of legal disability such as insanity.
*The parties must both sign the agreement of their own free will, without unfair pressure by the other party.
*The agreement must be properly executed, which means being signed by the parties in the presence of at least one witness.

As a general rule, each person who enters into a family law agreement should get ''independent legal advice'', advice from his or her own lawyer, before the agreement is signed about:

*what the agreement means,
*what rights and obligations the agreement gives to each party,
*how the agreement does or doesn't limit the other legal remedies that might be available,
*how the agreement may affect each person over the short- and long-term, and,
*the options and remedies that would have been available if everyone had decided to go to court instead of settling things with an agreement.

Independent legal advice is important for two reasons: it ensures that the parties to the agreement know exactly what their rights and obligations are; and, it makes the agreement stronger by preventing a party from claiming later on that he or she didn't fully understand what the agreement meant or how it would impact him or her. If you really want to make sure that your agreement will stand the test of time, you've got to make sure that you and the other party have both seen a lawyer about the agreement!

===Drafting an agreement===

Lawyers often write family law agreements in a standard format using standard terms, tailored, of course, to the specific needs and circumstances of the parties. Just because family law agreements are often written using standard terms and standard language doesn't mean that an agreement using different wording will be set aside because it expresses things in a different way. As long as it is clear what the intentions of the parties are and as long as the agreement is fair and continues to be fair, the courts will usually uphold the agreement.

A British Columbia company called Self-Counsel Press publishes a variety of do-it-yourself agreement kits along with instructions for completing and executing them, or you might try [http://www.lawdepot.com LawDepot.com], an American company which says that it has family law agreement kits suitable for British Columbia.

There are still other resources available for free that might help, and your library might have a copy of the Self-Counsel Press materials available for loan. Guides to drafting family law agreements are also available at a branch of [http://www.courthouselibrary.ca/about/libraries.aspx Courthouse Libraries BC]; one of the very best is the ''[http://opac.courthouselibrary.ca/Catalogues/CatView.aspx?id=7189 Family Law Agreements Manual]'' published by the Continuing Legal Education Society of British Columbia.

What follows are examples of the typical elements of a family agreement, using the example of John Doe and Jane Doe, a married couple who are entering into a separation agreement. These examples are not complete and are provided only to illustrate a point; they should not be used to draft your own agreement!

====The introduction====

The introduction to an agreement, also known as the ''exordium'' (isn't that a great word?), is the portion of an agreement that identifies the parties to the agreement, provides a title for the agreement, and sets out the date on which the agreement is made. This section typically looks like this:

<blockquote><tt>THIS SEPARATION AGREEMENT is made on this the 1st day of March, 2013.</tt></blockquote>
<blockquote><tt>BETWEEN:</tt></blockquote>
<blockquote><blockquote><tt>Jane Doe 
of 123 King Street, Anytown, British Columbia 
("Jane")</tt></blockquote></blockquote>

<blockquote><tt>AND:</tt></blockquote>
<blockquote><blockquote><tt>John Doe 
of 456 Queen Street, Anytown, British Columbia 
("John")</tt></blockquote></blockquote>

====The recitals====

The recitals describe the parties' circumstances when the agreement is made in a summary sort of way. They include the basic facts of their relationship, give the names and birth dates of any children, describe the property and debts that the agreement deals with, and describe the parties' incomes, among other things.

The recitals are the foundation on which the agreement is built. They should be sufficient to tell a complete stranger why the parties entered not just into any agreement but this particular agreement. It is important that the recitals be as complete as possible because if anyone tries to challenge the agreement in the future, the recitals will set out the facts that were important to the parties at the time the agreement was made.

In the case of a separation agreement, the recitals often look something like this:

<blockquote><tt>WHEREAS:</tt></blockquote>
<blockquote><tt>A. Jane and John were married on August 1st, 1996 at Anytown, British Columbia.</tt></blockquote>
<blockquote><tt>B. There are two children of the marriage:</tt></blockquote>
<blockquote><blockquote><tt>i) Buckminster Elliot Doe, born on March 5th, 1998, and 
ii) Randall Eustace Doe, born on April 11th, 2000</tt></blockquote></blockquote>
<blockquote><tt>(together, "the Children").</tt></blockquote>
<blockquote><tt>C. Jane is presently employed part-time as a mason by ABC Construction Ltd. and has an annual income of approximately $34,000.</tt></blockquote>
<blockquote><tt>D. John is presently employed full-time as a chef by DEF Resorts Inc. and has an annual income of approximately $45,000.</tt></blockquote>
<blockquote><tt>E. Jane and John have lived separately and apart since December 25th, 2012 (the "Date of Separation"), when Jane left the family home.</tt></blockquote>
<blockquote><tt>F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had parenting time with the Children every other weekend from Friday after school until Sunday at 7:00pm.</tt></blockquote>

The rest of the recitals will continue in the same way. Other recitals might describe the make, model and value of each party's car, the address and value of the family home, the credits cards owned by the parties and the amounts owing on them, and so on. Essentially, every fact that is relevant to the agreement should be put into the recitals to the agreement.

By the way, the parts where you see a capitalized word in brackets, like <tt>(the "Date of Separation")</tt>, are called ''defined terms''. These are very helpful because you can use a defined term to refer to the same thing throughout an agreement. Instead of saying <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia</tt> every time you need to talk about that property, you could say <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia (the "Family Home")</tt> once, and whenever you need to mention the property after that you can just say <tt>the Family Home</tt>.

====The operative clauses====

The operative clauses of an agreement are the nuts and bolts of the settlement. They are the essential terms of the agreement and describe what each party's rights and obligations are. In the case of a separation agreement, the operative clauses might look like this:

<blockquote><tt>IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED IN THIS AGREEMENT, THE PARTIES AGREE THAT:</tt></blockquote>
<blockquote><tt>1. Jane and John will live separate from each other.</tt></blockquote>
<blockquote><tt>2. Neither party will molest, annoy or harass the other or his or her friends, relatives and associates.</tt></blockquote>
<blockquote><tt>3. Except as is specifically provided in this Agreement, Jane and John will each keep all property presently in their possession and control as their own, free and clear of any and all claim by the other.</tt></blockquote>
<blockquote><tt>THE CHILDREN</tt></blockquote>
<blockquote><tt>4. Jane and John are the guardians of the Children, and John will have the Children's primary residence.</tt></blockquote>
<blockquote><tt>5. Jane and John will exercise all parental responsibilities with respect to the Children in consultation with each other. Jane and John will make every effort to agree on decisions that need to be made concerning the Children, and will make their decisions in the best interests of the Children. However, in the event that Jane and John cannot agree on a particular decision, John will have the right to make that decision.</tt></blockquote>
<blockquote><tt>6. Jane will have parenting time with the Children every Wednesday night, from the end of school or 4:00pm until 8:00pm, and on every other weekend from the end of school or 4:00pm on Friday until the following Sunday at 8:00pm.</tt></blockquote>
<blockquote><tt>7. Jane will have additional parenting time with the Children for one-half of the Children's winter school holiday, the whole of the Children's spring school holiday, and for two two-week periods during the Children's summer school holiday.</tt></blockquote>
<blockquote><tt>CHILD SUPPORT</tt></blockquote>
<blockquote><tt>8. Jane will pay child support to John in the amount of $525 on the first day of each and every month, continuing for so long as the Children remain "children" as defined by the ''Family Law Act''.</tt></blockquote>
The rest of the operative clauses will continue in the same way. Other paragraphs might deal with specific property such as a car or the family home, the payment of debts, and the sharing of the children's expenses. The operative claims might also say who will pay what bills, whether and for how long spousal support will be paid, who will pay for the divorce if the couple are married, which laws will govern the interpretation of the agreement, and so on.

====The signatures====

The last part of a family law agreement is where each of the parties will sign their names in the presence of a witness. The parties can sign the agreement at the same time or separately, at different times and in different locations. Either way, each party's signature must be witnessed, and the witness, after seeing the party sign the agreement, must sign his or her name to the agreement. The witness usually provides some other information, typically his or her full name, address, and occupation. The page with the parties' signatures should include at least one operative paragraph of the agreement.

<blockquote><tt>SIGNED by Jane       ) 
on March 20, 2013,   ) 
at Anytown, BC,      ) 
in the presence of:  ) 
                     ) 
___________________  )  ___________________ 
Signature            )  JANE DOE 
___________________  ) 
Name                 ) 
___________________  ) 
Occupation           ) 
___________________  ) 
Address              ) 
___________________  )</tt></blockquote>

This would be repeated for John's signature and that of John's witness.

The witnesses to the parties' signatures do not become parties to the agreement and the agreement cannot be enforced against them. The signature of the witness simply says that he or she saw the particular party sign the agreement, in case someone ever denies signing the agreement.

It is also a good idea for each of the parties and the witnesses to initial each page of the agreement, other than the page with the parties' signatures.

For a quick summary of how to execute a family law agreement, see the ''How Do I?'' part of this resource for [[How Do I Execute a Family Law Agreement?]] Look under ''Family Law Agreements''.

==Negotiating considerations==

For many couples, negotiations begin and end over a cup of coffee at the local Tim Hortons. This is fine, providing that everyone is relatively friendly and the parties are approaching their negotiations from a relatively level footing. The court will respect the agreements that negotiations like these produce, on the basis that people are free to make their own bargains and to contract to whatever they like.

===The views of the court===

Problems can arise when negotiations aren't completely fair. In a 2003 case from the Supreme Court of Canada, ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303, the court held that family law agreements should not be considered under exactly the same standards that are applied to ordinary commercial contracts because family law agreements are usually negotiated at "a time of intense personal and emotional turmoil, in which one of both of the parties may be particularly vulnerable." Some of these vulnerabilities were described in a 2000 case from Ontario, ''[http://canlii.ca/t/1w9mm Leopold v. Leopold]'', 2000 CanLII 22708 (ON SC):

<blockquote>"One party may have power and dominance financially, or may possess power through influence over children ... often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other. The complex marital relationship is full of potential power imbalance."</blockquote>

In a 2009 case, ''[http://canlii.ca/t/22hw5 Rick v. Brandsema]'',[2009] 1 SCR 295 the Supreme Court of Canada added another factor to this list, incomplete or misleading financial disclosure.

Potential unfairness, then, can come from:

*exploiting a party's emotional or psychological vulnerability,
*influence over a party through dominance and oppression,
*control over the family finances,
*influence over the children's allegiances, or
*access to or control over the release of financial information.

Where unfairness is found, the court will be more likely to set aside an agreement or to make an order on terms different than those set out in an agreement. As a result, people negotiating family law agreements must take special care to ensure that everyone is on a level playing field and are negotiating from positions of relative equality. Here are some things that can help:

*'''Independent legal advice:''' Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the lawyers who provided the independent legal advice witness the parties' signatures on the agreement, and sign certificates of independent legal advice.
*'''Respect vulnerabilities:''' Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in his or her right mind, down tools and come back to the table later. Consider the need for counselling or therapy before continuing.
*'''Make full disclosure:''' Always make full disclosure of all financial facts, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment account balances, outstanding debts, property values, values of shares and options, art and jewelry appraisals, and so on.
*'''Never lie:''' Intentionally misleading someone about the value of something, the amount of a debt, past income and future income expectations, or any other relevant fact will always undermine the strength of an agreement. Be scrupulously honest and transparent at all times.
*'''Know the law:''' The ''Divorce Act'' and the ''Family Law Act'' say when and why spousal support and child support should be paid. The ''Divorce Act'' talks about how much time children should have with their parents. For married spouses and unmarried spouses, the ''Family Law Act'' talks about how property and debt should be divided. Know how the law treats these different subjects and ensure the agreement roughly reflects the law.

===The tests under the ''Family Law Act''===

Unfairness is a key element of the tests under the ''[[Family Law Act]]'' to set aside the parts of agreements about the division of property and debt and about spousal support, as we saw under s. 93(3), reproduced above.

Under s. 44(4) of the act, the court can set aside the parts of agreements about parenting arrangements if the parenting arrangements are not in the best interests of the child:

<blockquote><tt>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 arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

The same test is used to set aside the parts of agreements about contact. Under s. 148(3), the court can set aside the parts of agreements about child support if it would make a different order:

<blockquote><tt>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.</tt></blockquote>

Section 150 is the part of the ''Family Law Act'' dealing with how child support is calculated.

==Drafting considerations==

First of all, it is always best to have a lawyer prepare any sort of contract, including family law agreements. While the Self-Counsel Press forms will likely be considered to be legally binding, a family law lawyer will be best able to advise you of the duties and obligations involved in the contract, the rights you will be giving up by entering into the contract, and other unexpected but critical issues the agreement might involve, such as:

*income tax consequences,
*the transfer of property,
*dividing property located outside of British Columbia, or,
*liabilities to third parties and creditors.

If you can't or don't want to hire a lawyer, here are a few things you will want to keep in mind.

===Don't use "legalese"===

Some people are tempted to use words that sound particularly legal, like using the word "issue" to refer to children. Avoid this at all costs, and try to use plain language to express the content of your agreement. Words like "issue" can have a particular legal meaning ― in this case first-generation, directly-descended heirs ― that are often at odds with what people think the term means. As a result, if you use legalese there is a risk that your contract won't wind up meaning quite what you think it means.

===Be as clear as possible===

Ask yourself these questions:

*What would a complete stranger think of your agreement?
*Would the stranger be able to understand what you mean?
*Are any parts of the agreement vague or capable of more than one meaning?
*Do you understand what the agreement means?

If a term of your agreement has more than one possible interpretation, it may lead to future conflict between yourself and the other party. If there are two cars, make sure each car is identified separately and distinctly, using defined terms like "Jerry's Ford Pinto" and "Mary's Pontiac Sunfire," and always refer to those cars in that way, and never just as "the car." If a term might mean more than one thing, change it to be more precise and more specific!

Also, remember that while you and your partner may know exactly what "the old spoons" might mean, a court may not, especially if there are a lot of different sets of spoons involved. It's best to be specific, like "the Teaspoons of the World silver spoon collection Jerry inherited from his grandmother Mabel."

===Avoid agreeing to agree===

An agreement that requires a further, future agreement — "the household furniture will be divided as Mary and Jerry will agree" — is open to further, future conflict. Whenever possible, try to limit an agreement to all that can be agreed upon at the moment and try to agree on as much as possible.

===Remember the loose ends===

It is always best to tie up any loose ends. This may require some thought as it isn't always obvious what else needs to be included. If a house has to be sold, for example, who will list it and hire the realtor? Who will live in it until the sale? How will the list price be chosen? Under what conditions will the list price be reduced? Are there any repairs or improvements that need to be made, and if so who will do them and how will they be paid for? How will the sale proceeds be dealt with? What debts will be paid from the sale proceeds? These things should all be specified, where at all possible.

===Be realistic===

You've got to live with the agreement; make sure it is something you can live with, not just now but in three or five years. Make sure that the obligations you must fulfill under the agreement are obligations that you can reasonably fulfill. Promising to pay off a credit card within a year, for example, isn't always the easiest thing to do and it isn't always practical.

Sometimes people who have separated are desperate to have done with it, to have a deal signed and finished. If you feel rushed into an agreement, step back and take two (or twenty-two) deep breaths. The world will not end if you take a moment or a week to think about something. It is critical that whatever you wind up agreeing to is something that you will still be okay with next month, next year, and in 10 more years. It can be very difficult to change an agreement in the future, especially one about division of property or debts, if only one of the parties wants the agreement to be changed. Be patient and take your time.

===Use sample clauses with caution===

Before copying a term from someone else's agreement into your own agreement, make sure you fully understand what that term means. A clause that suits one couple in one situation may be entirely inappropriate for another couple. It is all too easy to adopt a term that sounds good or appropriate, without fully considering what that term means. Be cautious, be prudent, be careful.


==Resources and links==
===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtAfterYouSeparate.php Legal Services Society's Family Law Website: Fact sheet on making an agreement after separation]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/whoCanHelpYouReachAnAgmt.php Legal Services Society's Family Law Website: Who can help you reach an agreement?]
* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2, Making Agreements]
*[http://www.clicklaw.bc.ca/resource/1259 Canadian Bar Association BC Branch: Script on marriage agreements and cohabitation agreements]
*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on Separation agreements and right to fairness]

{{REVIEWED | reviewer = [[Barbara Nelson]] and [[Beatrice McCutcheon]], September 17, 2014}}

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Marriage Agreements

2014-09-17T22:47:21Z

Beatrice McCutcheon: /* Legal and formal requirements of a marriage agreement */

Cohabitation and Living Together Agreements

2014-09-17T22:46:47Z

Beatrice McCutcheon: /* Legal and formal requirements of a cohabitation agreement */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Barbara Nelson|Barbara Nelson, QC]] and [[Beatrice McCutcheon]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtWhenYouLiveTogether.php Making an agreement when you live together]
}}Cohabitation agreements are contracts signed by couples who plan to live together or who are already living together. Cohabitation agreements typically deal with things like how property and debt will be divided or whether spousal support will be paid if the relationship ends. Cohabitation agreements can also deal with things during the relationship, like how the housework is distributed and how the household expenses are paid. There is no legal requirement for people to sign a cohabitation agreement when they decide to live together.

This section talks about when and why cohabitation agreements are usually signed and the legal requirements of valid cohabitation agreements.

==Entering into a cohabitation agreement==

Cohabitation agreements, also known as "living together agreements," are usually signed before or shortly after a couple starts living together. A couple may enter into a cohabitation agreement with the intention of addressing things that might happen during the time they live together, while they ''cohabit'', but cohabitation agreements are most often intended to address the issues that might arise if their relationship breaks down.

''There is no legal requirement that you must sign a cohabitation agreement if you're living with someone or plan on living with someone. You can't be forced to sign a cohabitation agreement.''

===Unmarried couples and cohabitation agreements===

The big difference between marriage agreements and cohabitation agreements is that people who sign a cohabitation agreement aren't married and may not intend to get married, or at least not just yet. They may become unmarried spouses or they may not. As a result, it's important to understand exactly how the legal status of unmarried spouses differs from the legal status of other unmarried couples and the legal status of married spouses before even thinking about the idea of a cohabitation agreement.

Married spouses have been legally married, either by a civil ceremony performed by a marriage commissioner or in a religious ceremony performed by a religious official. Married spouses who go to court are entitled to ask for orders under the ''[[Family Law Act]]'' about the division of property and debt and spousal support, and, if they have children, orders about parenting arrangements and contact.

An unmarried couple will become "spouses" for the purposes of the ''[[Family Law Act]]'' if:

#they've lived together in a marriage-like relationship for two years, or
#they've lived together in a marriage-like relationship for a shorter period of time and have a child together.

Unmarried spouses who have lived together for at least two years and go to court are entitled to ask for orders under the ''[[Family Law Act]]'' about the division of property and debt and spousal support, and, if they have children, orders about parenting arrangements and contact. Their rights are exactly the same as married spouses; these couples should also read the discussion on [[Marriage Agreements]] in the next section of this chapter.

However, unmarried spouses who have a child and have lived together for less than two years are only entitled to ask for orders about and spousal support, and, if they have children, orders about parenting arrangements and contact. They can't ask for orders about the division of property and debt under the ''Family Law Act''.

An unmarried couple who aren't spouses under the ''[[Family Law Act]]'' can only ask for orders about parenting arrangements and contact. They can't ask for orders about the division of property and debt or spousal support under the ''Family Law Act''.

For the purposes of this discussion, the critical distinction between unmarried spouses who have lived together and other unmarried couples lies in the different legal issues that arise when these different sorts of relationship come to an end. Here's a summary:

::{| width="65%" class="wikitable"
!style="width: 20%"|
!style="width: 15%" align="center"|Unmarried Spouses (together for two years or more)
!style="width: 15%" align="center"|Unmarried Spouses (together for less than two years)
!style="width: 15%" align="center"|Other Unmarried Couples
|-
|align="center"|'''Divorce'''|| || ||
|-
|align="center"|'''Guardianship'''||align="center"|Yes||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Parental Responsibilities and Parenting Time'''||align="center"|Yes||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Contact'''||align="center"|Yes||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Child Support'''||align="center"|Yes||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Spousal Support||align="center"|Yes||align="center"|Yes||
|-
|align="center"|'''Family Property and Family Debt'''||align="center"|Yes|| ||
|-
|align="center"|'''Protection Orders'''||align="center"|Yes||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Financial Restraining Orders'''||align="center"|Yes|| ||
|}

Issues relating to the care and financial support of children born to unmarried people are fairly straightforward, since legal issues about children mostly depend on whether someone is a ''parent'', not on the nature of the relationship between the parties. Only married spouses and unmarried spouses who have lived together for at least two years or have a child together can make claims for spousal support, and only married spouses and unmarried spouses who have lived together for at least two years can make claims for the division of property and debt.

===Deciding whether a cohabitation agreement is appropriate===

The most common reason why a couple enters into cohabitation agreements is to protect their separate property and income, so that each person's property going into a relationship is preserved as much as possible if the relationship comes to an end. Sometimes one person wants to preserve property from claims by the other person; sometimes a person will want to protect property from the other person's debts. Generally speaking, most couples who are thinking about executing a cohabitation agreement want a "I'll keep what's mine, you'll keep what's yours" sort of deal, and that's fine.

A couple might also enter into a cohabitation agreement to address spousal support if the relationship comes to an end. Sometimes a person will want to guarantee a certain minimum payment, but most often people want to be protected from having to pay spousal support. That's fine too, it happens all the time.

Cohabitation agreements are usually entered into when:

*the relationship is expected to be a long one,
*one or both parties have a substantial amount of property going into the relationship,
*one or both parties have significant debts going into the relationship,
*one of the parties has significantly more income than the other,
*one or both parties expect to acquire property during the relationship from, for example, a business, an inheritance, a court award, a gift, or employment income,
*one or both parties are bringing a child into the relationship,
*the parties expect to have child within the first two years of living together, or
*the parties expect that spousal support may be an issue if the relationship ends.

Cohabitation agreements are generally not appropriate when:

*the couple are young,
*neither party has significant property or debt going into the relationship,
*neither party is bringing any children into the relationship and no children are expected right away, or
*both parties are working out of the home and expect to continue working out of the home.

On top of these considerations, the ''[[Family Law Act]]'' also says that an agreement made before the parties have separated cannot deal with:

#parental responsibilities and parenting time, or
#child support.

Cohabitation agreements can also be useful to set rules for how the parties will manage things during the relationship, although this type of cohabitation agreement is fairly rare. When a cohabitation agreement is needed to deal with those issues, the parties' financial positions may not be relevant.

The usual sort of things a household management type of cohabitation agreement might be intended to address include:

*Who will pay for the household expenses? Will each party pay for a specific set of bills, or will the parties share in all the bills in a fixed amount?
*Will the parties keep separate bank accounts, or will they have a joint account for household costs? If there is a joint account, how will each party contribute to the account?
*Who will do the household chores? Will each party be responsible for a list of particular tasks?
*How will children brought into the relationship be cared for? Will the other party assume any parenting tasks?

If, at the end of the day, a cohabitation agreement is appropriate and desirable, the parties will negotiate the terms of the agreement, and someone, whether a lawyer or one of the parties, will draft the written agreement. As with all family law agreements, it's important that both parties get independent legal advice about what exactly the agreement means, how it affects their present rights and responsibilities towards one another, and how it will affect those rights and responsibilities if their relationship comes to an end. Getting independent legal advice strengthens the agreement by preventing one spouse from saying "I didn't know what it meant!" if the agreement is challenged later on.

Finally, a good cohabitation agreement should specify what will happen if the parties marry. The agreement could continue in effect after the marriage, terminate when the parties are married, or be reviewed and revised by the parties at the time of the marriage. In any case, the prospect of marriage and its impact on the cohabitation agreement should be dealt with in some manner.

===Avoid do-it-yourself cohabitation agreement kits===

Staples, Chapters, London Drugs and other stores generally carry a wide range of DIY legal products, from doing your own will to getting your own divorce.

In my view most of these do-it-yourself kits are fine for most people most of the time. However, cohabitation agreements can be complicated and must be drafted with a good knowledge of family law, cohabitation agreements in particular, and the general law applicable in British Columbia. Using a do-it-yourself cohabitation agreement kit is really not a good strategy.

If you figure that you absolutely must have a cohabitation agreement, it's well worth spending $1,500 to $4,000 to have a lawyer draw it up correctly for you, rather than spending $15,000 to $40,000 on lawyer's fees down the road if the agreement is flawed.

==Legal and formal requirements of a cohabitation agreement==

The point of entering into a cohabitation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, a cohabitation agreement, just like any other family law agreement, must conform to certain basic rules, including the following:

*A cohabitation agreement must be in writing.
*The agreement must be signed by each party, and should be signed in the presence of a witness. Although an agreement made without a witness can still be valid and binding, it is a very good idea to have a witness (or witnesses) because she (or they) can confirm that the parties signed the agreement. In addition, sections 94 and 165 of the ''[[Family Law Act]]'' provide that a court cannot make an order about division of property and debt or spousal support that has been dealt with in a written, witnessed agreement between the parties unless the court has set aside the agreement.
*Neither party should be under a legal disability when signing the agreement, however children who are parents or spouses may enter into a binding agreement.
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a family law agreement, you might want to think about certain other principles of contract law such as these:

*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
*Both parties must make full and complete disclosure of their circumstances going into the agreement. This disclosure should include complete information about the parties' assets and debts, as well as information about the values of the assets and amounts owing on the debts.
*The parties cannot make an illegal bargain, that is, they can't make an agreement that obliges them to do something against the law.
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may be interpreted in favour of the party who didn't have the lawyer.
*The court will attempt to give effect to a contract wherever possible, that is, it will attempt to give meaning to the terms of a contract rather than declare it void.
*If a term of a cohabitation agreement is found to be invalid, only the invalid part of the agreement will stop being in effect. The remainder of the agreement will continue to be valid and binding on the parties.

Aside from these considerations, it's also important to remember that cohabitation agreements that deal with property and debts or issues like spousal support are usually only meant to be used when the relationship comes to an end, at some unknown time in the future. As a result, it can be difficult to guess what each party's situation will be like when the agreement begins to operate and guess whether it will still be appropriate and fair. Because of these problems, hiring the services of a lawyer to prepare a cohabitation agreement is highly recommended. Crafting a solid cohabitation agreement is a tricky business at the best of times.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

*[http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtWhenYouLiveTogether.php Legal Services Society Family Law Website: Making an agreement when you live together]
*[http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2, Making Agreements]
*[http://www.clicklaw.bc.ca/resource/1259 Canadian Bar Association BC Branch: Script on marriage agreements and cohabitation agreements]

{{REVIEWED | reviewer = [[Barbara Nelson]] and [[Beatrice McCutcheon]], September 17, 2014}}

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Agreements after Separation

2014-09-17T22:46:11Z

Beatrice McCutcheon: /* Formal requirements of separation agreements */

{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|ChapterEditors = [[Barbara Nelson|Barbara Nelson, QC]] and [[Beatrice McCutcheon]]
}}
{{Clicklawbadge
| resourcetype = more resources dealing with 
|link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements]
}}A separation agreement is a contract that records a settlement of the issues that arise when a married or unmarried relationship ends. Unlike marriage and cohabitation agreements which are made when a relationship starts, separation agreements are made when the relationship is over.

Separation agreements can be an effective and inexpensive way of settling things. However, the terms of the agreement must be fair, and the parties must be able to get along well enough to negotiate the deal and then put it into action when it's done.

This section provides an introduction to separation agreements, discusses how separation agreements are formed, and describes the legal requirements of separation agreements. It also looks at the typical subjects of separation agreements in some detail. In addition, it discusses the effect of reconciliation on separation agreements.

==Introduction==

Every separating couple has three options to resolve the legal issues between them:

#settle the matters between them out of court through negotiation or mediation, or through some other process like arbitration or collaborative settlement processes,
#have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process, or
#give up and just walk away from the mess.

It is almost always better to negotiate and settle a dispute than to begin a court proceeding and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process.

A couple can reach a settlement at any time, even after a court proceeding has started. Typically a settlement reached before a proceeding has begun is put into the form of a separation agreement. Settlements reached after the start of a proceeding can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a ''consent order'', an order that both parties agree the judge should make.

Separation agreements can deal with almost any issue a couple have to address, from who will keep the cats, to how the mortgage will be paid, to how the children's post-secondary education costs will be handled. They also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple.

Of course, separation agreements aren't for everyone. There must be a certain basic amount of mutual trust and good faith, and each party must have a certain flexibility and a willingness to accommodate the other side. A separation agreement will not be appropriate where a couple are so filled with anger, jealousy or stubbornness that even a basic level of mutual respect is absent and dialogue is not possible.

==Alternatives to separation agreements==

Settlement can be reached in a number of different ways before a court proceeding has started, through negotiation, mediation, a collaborative settlement process, or arbitration. Settlements reached in these ways are almost always recorded in the form of a separation agreement.

Settlements reached after a proceeding has started are generally only recorded as separation agreements if they are unusually complicated or if there are concerns about whether a term of the settlement can be put into a court order. Otherwise, a settlement of litigation will be recorded as minutes of settlement or a consent order.

====Minutes of settlement====

Minutes of settlement are a written record of the settlement of a court proceeding. They are reached after a court proceeding has begun and are usually used to describe the terms of a consent order, an order that both parties agree the court should make. Both of the lawyers and each of the parties will sign the minutes of settlement; usually only the lawyers will sign the final consent order.

Minutes of settlement sometimes have a rough-and-ready feel to them, as they are usually used to record an often hasty settlement of the legal issues, a settlement that is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less comprehensive than separation agreements. However, even though they lack the same fine-tuning and detail, minutes of settlement are just as binding upon the parties as a separation agreement would be. Both are contracts and can be enforced as such.

Minutes of settlement should:

#be signed by both lawyers and by both parties, although the signature of the parties isn't strictly necessary,
#deal with each significant issue in a final manner, and
#be attached to the draft consent order submitted to the court for its approval.

====Consent orders====

A consent order is an order that both parties agree that a judge should make. Consent orders are only appropriate if litigation has started. It is not necessary to have minutes of settlement done before a consent order is agreed to.

When a judge pronounces an order by consent, the order has just the same effect as a final order reached after a trial and is binding upon the parties as a final order.

====Minutes of settlement and consent orders====

The advantage of minutes of settlement is that the minutes can stand alone as evidence of the written agreement of the parties, while the form of a draft consent order, which may reflect the parties' agreement, still requires the court's approval. Moreover, if the terms of a draft consent order are argued about, there may not be any evidence of the agreement — as would be provided by minutes of settlement — which a court can use to decide the matter.

Consent orders have unique advantages of their own, in that it is usually extremely difficult to vary an order pronounced by consent without a serious and unanticipated change in circumstances, and because such orders are almost impossible to appeal.

===Other final agreements===

Any dispute a couple has can be resolved by a formal contract of some nature. Separation agreements are usually signed by married spouses or unmarried spouses and deal with a large range of issues, from the care of children to the division of property and debt.

Some couples may only have one issue to resolve and the usual sort of separation agreement isn't required. People who are just parents and never married or cohabited may want a parenting agreement that talks about parental responsibilities and the allocation of parenting time. Couples, including unmarried spouses who lived together for less than two years, who only need to deal with child support and/or spousal support may want a support agreement that deals with either or both issues. Couples who only need to resolve who keeps what property and which debts may want a simple property agreement.

Family law agreements can also involve more people than the people involved in a relationship. Separated parents might sign an agreement for contact with grandparents who want to see their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money.

==Entering into a separation agreement==

A separation agreement can be negotiated and signed at any time after a married or unmarried relationship has broken down. A separation agreement can be signed after a court proceeding has been started or before one has even been considered.

===The basic process===

The process for entering into a separation agreement is fairly simple. The parties discuss the issues resulting from the breakdown of their relationship between themselves (and, hopefully, in consultation with their lawyers as well). They attempt to reach a resolution of each of the legal issues that is as satisfactory to both of them as possible. It's a good idea to take notes and record how each issue is resolved, as these notes may wind up forming the basis for any agreement that might be reached.

The settlement process is a process of negotiation: each party usually has a pretty good idea of how they would like to see things resolved, and then, following the exchange of these ideas, a compromise is reached that represents a blending of the two positions. Once settlement is reached, one of the parties will draw up a formal agreement and give it to the other party. This draft is carefully reviewed to ensure that it accurately reflects the agreement that was reached, to check whether anything was left out, and to make sure that there are no other issues that need to be discussed and included.

Drafting a separation agreement is something that requires a great deal of skill and a solid understanding of family law and contract law. While kits are available that can guide you in drafting an agreement, I highly recommend that you hire a lawyer to deal with the matter when the content of your agreement is anything other than completely straightforward.

Once both parties are content with the text of the agreement, they must each take the agreement to their respective lawyers — or to any lawyer, for that matter — for advice on how the agreement affects their legal rights and the options they may have open to them if they don't sign the agreement. This is called getting ''independent legal advice''. This stage is critical for three reasons:

#If you are entering into an agreement that will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a court proceeding.
#You must understand the obligations and rights you have under the agreement.
#It stops either party from claiming, later on, that he or she didn't know what the agreement meant or that he or she was at a disadvantage because the other party's lawyer drafted the agreement.

After each party has had independent legal advice about the agreement, they will sign the agreement in the presence of a witness if they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement him- or herself.

Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement."

If the parties had legal advice, the lawyer who gave the advice will usually also sign a certificate confirming that: the party received advice as to how the agreement affects his or her legal interests; the party understood the terms of the agreement; and, the party wasn't forced into making the agreement. This is usually called a ''Certificate of Independent Legal Advice''.

Normally, four separate original copies of a separation agreement are executed. This is so that the parties and their lawyers can each have an original copy of the agreement. Sometimes, an extra original copy is executed in case the agreement must be filed in court.

===If you are negotiating an agreement and have a lawyer===

Even if you have a lawyer it can be extremely tempting to work something out with your ex on the side. If you feel even remotely tempted to do so, call your lawyer! Make sure your lawyer knows that you're trying to explore settlement, and make sure you understand what to say and what not to say.

Nothing is quite as frustrating as finding out that a client has negotiated an inadequate or prejudicial agreement without the lawyer's input. While you, the client, are free to do as you want and can arrive at any settlement you wish, be warned that you may find yourself settling for poor terms compared to what your lawyer might have been able to negotiate for you or compared to the results you might have obtained at trial. Remember that you may be stuck with any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one.

Call your lawyer before you sign or initial anything. This is what you're paying her for.

==Formal requirements of separation agreements==

A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord, or the company from which you lease your car. On the other hand, it's a special kind of agreement, different from commercial contracts, because it deals with family law issues that are also discussed in the ''[[Family Law Act]]'' and the ''[[Divorce Act]]''. As a result, the law dealing with separation agreements is a blend of legislation, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts.

The whole point of a separation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, the agreement must be enforceable and it must be able withstand a challenge in court, that is, it must be drafted in such a way and contain terms that are reasonably fair such that a court will uphold the agreement if it is attacked.

A separation agreement must therefore conform to certain basic rules, including these:

*A separation agreement must be in writing.
*The agreement must be signed by each party, and should be signed in the presence of a witness. Although an agreement made without a witness can still be valid and binding, it is a very good idea to have a witness (or witnesses) because she (or they) can confirm that the parties signed the agreement. In addition, sections 94 and 165 of the ''[[Family Law Act]]'' provide that a court cannot make an order about division of property and debt or spousal support that has been dealt with in a written, witnessed agreement between the parties unless the court has set aside the agreement.
*Neither party should be under a legal disability at the time the agreement is signed, however children who are parents or spouses may enter into a binding agreement.
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a proper family law agreement, you might want to think about certain other principles of contract law such as these:

*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
*Both parties must make full and complete disclosure of their circumstances going into the agreement.
*The parties cannot make an illegal bargain, that is, they can't make an agreement that obliges them to do something against the law.
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may be interpreted in favour of the party who didn't have the lawyer.
*The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void.

Family law agreements are also subject to other principles that don't necessarily apply to commercial contracts:

*The parties must make full, complete and honest disclosure of their financial circumstances going into the agreement.
*If one term of a separation agreement is void, only that term will fail and the rest of the agreement will continue as a valid agreement that is binding on the parties.
*A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement, that is, you can't say the whole agreement has been broken because the other party didn't do something he or she was supposed to do.
*While the parties can later agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force.

Note that the courts will rarely if ever uphold an agreement that attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward his or her children. The court will not consider itself bound by an agreement that says a person will never have to pay child support.

==The possible subjects of a separation agreement==

The potential subjects of a separation agreement are limited only by common sense and what the law will allow. That said, it is always best to be as realistic as possible when drafting a separation agreement. Is a schedule of payments unrealistically difficult for one party? Will the children be able to adapt to a shared parenting arrangement? Are the parties' obligations to one another too complex? Are they too optimistic? Are they affordable? While it is best that all of the issues between the parties be dealt with in a separation agreement, the simpler an agreement is, the better it will usually work in real life.

===Children===

Issues about parenting after separation are covered by the federal ''[[Divorce Act]]'' for married spouses and by the provincial ''[[Family Law Act]]'' for married spouses, unmarried spouses and other unmarried couples, and other people who have an interest in the care of a child.

The ''Divorce Act'' uses some pretty old fashioned language to talk about children, ''custody'' and ''access''. The ''Family Law Act'' talks about people who are the ''guardians'' of a child and have ''parental responsibilities'' and ''parenting time'', and people who are not guardians and have ''contact''.

====Custody and access====

There are two basic types of custody available under the ''Divorce Act'': sole custody and joint custody. Sole custody is less common than it used to be, and is usually only appropriate where the parties are constantly at each other's throats or where one party is or expects to be absent from the child's life. Joint custody is far more common than sole custody. In this situation, both parents are custodians of the children and both have responsibility for making decisions about the children.

Joint custody has little to do with how much time the child spends with each parent. The child's time can be shared equally or almost equally, or the child can see a parent only on weekends, and the parents can still have joint custody.

====Guardianship====

Under s. 39(1) of the ''[[Family Law Act]]'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardian. A parent who has never lived with his or her child isn't a guardian unless the parent "regularly cares" for the child.

Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way, are parents who aren't guardians to begin with — parents who have never lived with the child and have not "regularly cared" for the child.) Someone who is not a parent can't be made a guardian by an agreement.

====Parental responsibilities====

Only a guardian can have parental responsibilities for a child under the ''Family Law Act''. These responsibilities are listed at s. 41:

<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote>
<blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;</tt></blockquote>
<blockquote><tt>(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote>
<blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote>
<blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>

Guardians can share one or more of these parental responsibilities, or one or more parental responsibilities can be allocated just to one guardian, so that only that guardian has responsibility for that issue.

====Parenting time and contact====

Parenting time and contact are both about the child's parenting schedule, although parenting time is about a bit more than just the child's schedule. Only guardians have parenting time; people who aren't guardians have contact with a child.

The terms of a child's parenting schedule can be very specific or, where the parties get along exceptionally well with one another, the terms can be as vague as "Jane will have liberal and generous parenting time with the child."

If there has been a history of difficulty exercising parenting time or contact, or there is even a smidgen of conflict between the parties, it can be important to spell out the child's schedule in more detail to avoid future arguments. The terms of the child's schedule usually spell out when the party will see the child on a week-to-week basis, such as "John will have the child from Friday at the end of school to the following Sunday at 7:00pm, every other week, plus each Wednesday from the end of school until 7:00pm."

Children's schedules can also take into account:

*the child's birthday,
*Mothers' Day and Fathers' Day,
*the parties' birthdays,
*school and religious holidays,
*extended access when there is a civic holiday or a professional development day at school,
*communication by telephone and computer, including email, instant messaging and video conferencing,
*responsibility for picking up and dropping off the child,
*school events,
*the child's extracurricular activities, and
*birthdays of the child's friends.

===Child support===

Child support is a monthly sum, paid by the parent who has the child for the least amount of time, the ''payor'', to the parent who has the child for the most amount of time, to help cover the day-to-day living expenses of the child. The amount of child support that is paid is almost always dealt with by referring to the [[Child Support Guidelines]], which set out the amount of a parent's child support obligation according to the number of children support is being paid for and the payor's income.

A good separation agreement will:

#state the income of each parent at the time the agreement is made,
#state the monthly child support to be paid,
#set up a system that requires the parties to exchange copies of their tax returns and Canada Revenue Agency notices of assessment each year or every other year,
#provide for a review of child support if the payor's income rises or falls, and
#provide for the recalculation of the parties' shares of the cost of the child's special expenses if either party's income rises or falls.

The Guidelines are an extremely convenient way to calculate a party's child support obligations up to the point where the spouse paying support, the ''payor'', has access to the child for 39% or less of the time. Once the payor has 40% or more of the child's time, the Guidelines tables become less important, and child support is assessed based on, among other things, each party's income and the amount of expenses related to the child that each party is paying. In the context of separation agreements, this allows for a little more flexibility in determining child support, but makes the annual exchange of financial information even more important.

===Spousal support===

Spousal support is paid by one spouse to the other to help cover that person's day-to-day living expenses. A separation agreement that provides for the payment of spousal support should be negotiated bearing in mind all of the things the court would have considered in making an order for spousal support.

Typically, a separation agreement that requires spousal support to be paid will include some means of limiting the length of time for which support will be payable. Such terms might include:

*a fixed length of time over which support will be paid, after which the payor will have no more responsibility to pay,
*an indefinite amount of time that support will be paid, with one or more dates set for spousal support to be reviewed,
*a series of graduated payments, so that the recipient receives a declining amount of support as he or she re-enters the work force,
*the termination of support if the recipient enters a new spousal relationship, or
*the payment of support in a single, lump sum.

In some situations, of course, permanent support may be required, especially if the relationship was lengthy or if the recipient is unlikely ever to become self-sufficient because of illness, for example.

Some agreements also provide that no spousal support will be payable. If you are the spouse who would ordinarily be entitled to receive support, you need to be pretty confident that the agreement is fair as it may be very difficult to get support later on if your personal circumstances change.

===The division of property and debt===

The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''[[Family Law Act]]'', each spouse is presumed to keep the property he or she brought into the relationship and share in the property bought during the relationship. The spouses are presumed to be each half responsible for any debt incurred during the relationship. However, you can make whatever other arrangements you want, as long as you both agree to those arrangements and they're reasonably fair.

When the division of property and debt are issues, it's often helpful to exchange Financial Statements. A Financial Statement, Form F8 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules], is a helpful court form in which each party describes his or her income, assets, expenses and debts on oath or affirmation, like an affidavit. This form can be very useful for each spouse to get a clear idea of the family's financial situation before negotiations start. You can find links to and examples of a Financial Statement and other forms in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

A separation agreement should talk about how debts will be managed. Separating couples typically pay out family debts by the sale of a shared asset where there's not enough cash to pay it out, which is usually how the mortgage on the family home gets paid out, or they can allocate a different share of the family property to compensate for a family debt that can't be paid out. When a debt won't be paid out, it's essential to do two things: allocate responsibility for the debt; and, provide that the party remaining responsible for the debt will protect the party from having to repay the debt.

===Other issues===

Arrangements for the care of children, the payment of support, and the division of family property and family debts are the most common issues that come up in family law. There are a whole host of other issues that couples may have to deal with, including some that can only be dealt with in separation agreements.

====The parties' future relationship with each other====

Most separation agreements include a whole section devoted to describing how the parties will deal with each other once the agreement is executed. Typically, this portion of an agreement requires the parties, among other things, to:

*not incur debts in the name of the other party,
*not interfere with the personal life of the other party, including interfering with the other party's relationships with his or her parents, family, friends, and future partners, and,
*not molest, harass or annoy the other party.

Some separation agreements will also describe what will happen if the parties reconcile with each other. Most often an agreement will simply say that it becomes a marriage agreement or a cohabitation agreement if the parties reconcile, and that it will not cease to be in effect simply because of the reconciliation.

====Life insurance====

Where children are involved, it can be a good idea to provide that each party will maintain a life insurance policy until the children have all reached the age of majority. Each policy will name the other parent as the sole beneficiary of the policy in trust for the benefit of the children, in order to ensure that the kids will be looked after in the event that either party dies. Most agreements that deal with insurance allow the parties to change the beneficiaries of their policies once the youngest child turns 19.

In general, it's only appropriate to include a term about insurance policies if the parents can afford to pay for those policies.

====Undisclosed assets====

If you have even the slightest doubt that the other party hasn't been entirely forthcoming about the extent of his or her assets, a term governing undisclosed assets can be important. These sorts of terms usually provide that:

*any property that wasn't disclosed when the agreement was executed will automatically be deemed to be owned equally by both parties,
*the party that didn't disclose the asset will have to give the other party one-half of the asset's value, and,
*the party that didn't disclose the asset will have to pay the expenses the other party incurred in finding the asset, plus a financial penalty.

==The effect of reconciliation==

Separation agreements don't always contain special terms providing for the reconciliation of the parties and the resumption of their relationship. But if a couple does reconcile, what happens to their separation agreement? Does the agreement stay in force? What happens if the parties separate again?

The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resume their relationship and live as a couple. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, ''[http://canlii.ca/t/5115 Sydor v. Sydor]'', 2003 CanLII 17626 (ON CA). In that case, the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, notwithstanding a term of the agreement that it is a "full, final and conclusive settlement" of all issues arising from their relationship.

The upshot of all this is that if there's a chance that you and your spouse might get back together, and you want your separation agreement to survive your reconciliation, you must put a term to that effect in your separation agreement. Without it, your agreement may be worthless if you reconcile and the relationship breaks down again at some point afterwards.

==Separation agreements filed in court==

Agreements that are filed in court can be enforced as if they were orders of the court in which they are filed. Among other things, this means that the Family Maintenance Enforcement Program can enforce an agreement for support exactly as it would enforce an order for support.

To find out how to file an agreement, or to see if your agreement has been filed in court, read [[How Do I File an Agreement in Court?]] It's located in the ''How Do I?'' part of this resource under ''Separation Agreements''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtAfterYouSeparate.php Legal Services Society's Family Law Website: Fact sheet on making an agreement after separation]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/whoCanHelpYouReachAnAgmt.php Legal Services Society's Family Law Website: Who can help you reach an agreement?]
* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2, Making Agreements]
*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on separation agreements and right to fairness]
* [http://www.lawsociety.bc.ca/docs/practice/checklists/D-3.pdf Law Society of BC: Separation agreement drafting checklist]

{{REVIEWED | reviewer = [[Barbara Nelson]] and [[Beatrice McCutcheon]], September 17, 2014}}

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