Changing Family Law Agreements
After a family law agreement has been signed, one of three things can happen:
- the people who signed the agreement, the parties to the agreement, follow the agreement and everything continues as it should,
- the circumstances of the parties or a child change, and their agreement must also change, or
- one of the parties refuses to follow the agreement and the agreement 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. The previous section in this chapter talks about how family law agreements are enforced.
Changing agreements with another agreement
There are almost always two ways of doing something, the hard way and the easy way. In family law, the easy way usually involves talking and negotiation. The hard way usually involves going to court, and is quite a 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 and worth the time and money of a court proceeding. 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.
A family law agreement can be changed or updated by a later agreement. If the parties to an agreement both agree that the original agreement should be changed and agree on how it should be changed, the parties can sign a second agreement usually called an amendment agreement, an amending agreement or an addendum agreement.
An agreement changing an agreement needs to talk about the original agreement or no one else will know what agreement the new agreement is changing, and is usually titled something like "Amendment to the Separation Agreement made on 1 April 2022." 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 must say exactly which particular paragraph of the original agreement is being changed or updated, and then state the new text of that paragraph. Here's an example of a change and an update:
3. The parties agree that Paragraph 23 of the Agreement made on 1 April 2022 will be cancelled and be replaced with the following:
"Michelle 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."
4. Michelle's income is $45,000 per year as of the date on which this Amending Agreement is made. The parties agree that Michelle's child support obligation, set out at Paragraph 28 of the Agreement made on 1 April 2022, will be $423 per month, beginning on the first day of the month following the month in which this Amending Agreement is made.
Just like the original agreement, the amending agreement must be signed by each party in the presence of a witness, who watches the party sign the agreement and then signs the agreement themselves. The same person can be the witness for both parties.
Resolving disputes about amendments
A well-written family law agreement will usually provide a way for the parties to resolve disputes arising from the agreement if they can't resolve a dispute by negotiating a resolution on their own. Sometimes an agreement requires that the parties go to court to resolve disputes about the agreement; most often, an agreement will require the parties to try to resolve their dispute out of court through mediation or arbitration.
Mediation is usually 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, a mediator, who is skilled in family law issues and works with the parties to get them to a new agreement.
Mediation isn't always appropriate, particularly where the problem is limited to one or two particular terms of an agreement and neither party is willing to bend on the matter. In cases like this, you might want to consider arbitration. The job of an arbitrator is to listen to the evidence and the arguments presented by the parties to the agreement, 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.
Challenging agreements by going to court
If you've become unhappy with all or part of your agreement and can't or don't want to resolve the problem through negotiation, mediation or arbitration, you can either try to live with the agreement or you can go to court. If you decide to go to court, you have two choices. You could try asking the court to throw out the entire agreement because it's unfair, because it's invalid, or because of some other fatal problem under the law of contracts. Or, you could try asking the court to cancel just part of the agreement under the Family Law Act.
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 was the product of an often lengthy process of negotiation, and the courts are usually unwilling to disturb agreements the parties made themselves 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.
Cancelling agreements under the law of contracts
Just like commercial contracts, the validity of family law agreements can be challenged under the law of contracts. Someone challenging an agreement can argue that:
- they were under some sort of duress or coercion when they negotiated or signed the agreement, and didn't enter into the agreement voluntarily, of their own free will,
- the agreement is unconscionable — in other words, the agreement is obviously and seriously unfair to a party with no reason for that level of unfairness,
- they signed the agreement without having independent legal advice and didn't fully understand what the agreement meant, and, as a result, they signed it by mistake,
- the agreement was signed without full disclosure having been made, or
- they were tricked into signing the agreement because misleading information had been provided by the other party.
Arguments like these challenge the validity of an agreement.
Duress, coercion, unconscionability and mistake
The courts won't enforce an agreement — that is, they won't force the parties to an agreement to follow the terms of their agreement — if one of them had been forced or pressured into signing the agreement. An agreement must be entered into freely and voluntarily. You have to choose to sign an agreement.
Likewise, the courts won't enforce an agreement where one of the parties used pressure or a position of power to get the other party to sign 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 that a party signed when they were under a fundamental misunderstanding about the nature of the family finances or the extent of a party's assets or debts.
Lack of independent legal advice
A party to an agreement may be able to challenge the validity of their agreement if they didn't have "independent legal advice" before signing the agreement. Independent legal advice is advice about an agreement that is provided by a party's lawyer or a lawyer that the party has hired just for the purposes of getting advice about their agreement. The lawyer's advice is about the meaning and effect of the agreement, about the rights and responsibilities a party will have as a result of signing an agreement, and about how the terms of the agreement compare to the probable outcome of the legal issues covered by the agreement had they been argued about in court. Independent legal advice helps to ensure that both parties are on a more or less equal footing when they sign their agreement, and helps to ensure that one party doesn't unintentionally enter into an agreement that is unfair.
There is no legal requirement that someone get independent legal advice before they sign an agreement. In most situations, the absence of independent legal advice will not be enough to overturn an agreement. It might, however, help a party argue that they didn't understand the meaning or the effect of their agreement and, as a result, made a mistake when they signed it.
Misleading information and the failure to make full disclosure
When people enter into an agreement, they do so on the assumption that certain important facts are true; that each is earning as much money as they say they are, that each has no more assets and debts than they say they have, and so on. 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 important facts, or if one party has lied about or misrepresented these facts, the courts may be willing to overturn an agreement.
You might make, for example, an agreement that you will keep an RRSP worth $100,000 because the other party is keeping a condo that's also worth $100,000. This seems pretty fair, assuming that the condo is in fact worth $100,000 as the other party says. If it turns out that the condo is in fact worth $500,000, the agreement is no longer fair. While you might still have made the deal to keep the RRSP in return for the other party keeping the condo, you could argue that the agreement should be canceled on the basis that you only signed it because of the misleading information provided by the other party.
Cancelling agreements under the Family Law Act
The court cannot vary or change agreements that are valid. Instead, under the Family Law Act, the court can cancel, or set aside, the problematic parts of the agreement and make an order in place of those parts. Section 214 of the act says this:
(1) If an order is made to set aside part of an agreement, the part is deemed to be severed from the remainder of the agreement.
(2) A court may incorporate into an order all or part of a written agreement respecting a family law dispute made by the parties to the proceeding and, unless the court orders otherwise,
(a) the order replaces that part of the agreement that is incorporated, and
(b) the remainder of the agreement remains effective.
(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,
(a) the order replaces the part of the agreement that provides differently for the same subject matter, and
(b) the remainder of the agreement remains effective.
The legal test that the court must apply to set aside part of an agreement changes depending on the subjects covered by those parts.
The Family Law Act doesn't provide a specific test to change an agreement appointing a parent as the guardian of a child. (Only parents can be appointed as guardians by agreement. Other people who want to become a guardian of a child have to apply for a court order appointing them as a guardian.) However, if a problem about a guardianship agreement comes up, you could ask for an order that "provides differently for the same subject matter" under section 214(3), in which case the court order replaces the guardianship agreement.
Under section 37(1) of the act, the court must make decisions about guardianship considering only the best interests of the child. The factors the court must think about are listed at section 37(2) of the act and, when family violence is a factor, at section 38 as well.
Parental responsibilities, parenting time and contact
Under the federal Divorce Act, married spouses have decision-making responsibilities for their children, and the schedule of their time with the children is called parenting time. People who are not married spouses may have contact with a child.
Under the provincial 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 called parenting time. People who are not guardians, including parents who are not guardians, may have contact with a child.
Decision-making responsibilities means more or less the same thing as parental responsibilities, although the Family Law Act goes into a lot more detail about the sort of decisions that parental responsibilities includes than the Divorce Act does. The court will think about agreements that talk about decision-making responsibilities as if the agreement was about parental responsibilities.
Section 44(4) of the Family Law Act says this about agreements for parental responsibilities and parenting time:
On application by a party, the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child.
Section 58(4) says almost exactly the same about agreements for contact.
The factors the court must think about to decide what is in the best interests of a child are listed at section 37(2) of the act and, when family violence is a factor, at section 38 as well. It's important to read and understand the best-interests factors. If you are asking the court to set aside the parts of an agreement about parental responsibilities, parenting time or contact, you'll need to be able to show why the terms of those parts are no longer in the children's best interests.
As in all questions about children, the court's only concern is the best interests of the child. The court will rarely interfere with an agreement that requires child support to be paid in an amount determined in accordance with the Child Support Guidelines. The courts will also be reluctant to set aside an agreement that requires more child support to be paid than what the Guidelines require, because it's usually considered to be in the best interests of children to benefit from the payment of as much support as possible. The courts will be much more willing to interfere with an agreement that calls for less child support to be paid than what the Guidelines require.
Section 148(3) of the Family Law Act says this:
On application by a party, the court may set aside or replace with an order made under this Division all or part of an agreement respecting child support if the court would make a different order on consideration of the matters set out in section 150.
Section 150 is the section that says how child support is to be calculated, namely that it is to be calculated according to the Guidelines. As a result, the court will set aside the parts of an agreement dealing with child support if:
- the payor's income has increased since the agreement was signed,
- the payor's income has decreased since the agreement was signed,
- one or more children are no longer living mostly with the parent receiving support,
- one or more children are now spending their time almost equally with the payor and the recipient,
- one or more children are no longer entitled to receive support, or
- the agreement provides for an inadequate amount of child support for some other reason.
If you are asking the court to set aside the parts of an agreement about child support, you'll need to be able to show why the amount of child support paid under the agreement is no longer the amount of support required by the Guidelines.
Section 164 of the Family Law Act talks about when the parts of an agreement about spousal support should be set aside. Under section 163(2), an agreement about spousal support includes both an agreement that spousal support won't be paid as well as an agreement that spousal support will be paid.
Section 164 provides two legal tests to help the court decide whether an agreement should be set aside. The first test requires the court to look at what happened when the agreement was being negotiated and signed:
(3) On application by a spouse, the court may set aside or replace with an order made under this Division all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:
(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;
(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;
(c) a spouse did not understand the nature or consequences of the agreement;
(d) other circumstances that would under the common law cause all or part of a contract to be voidable.
That last part, at section 164(3)(d), is about the law of contracts, discussed above.
Even if there are no problems with the circumstances in which the agreement was negotiated and signed, the court can still set aside the agreement if it considers the agreement to be "significantly unfair," considering five factors:
(5) Despite subsection (3), the court may set aside or replace with an order made under this Division all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:
(a) the length of time that has passed since the agreement was made;
(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;
(c) the intention of the spouses, in making the agreement, to achieve certainty;
(d) the degree to which the spouses relied on the terms of the agreement;
(e) the degree to which the agreement meets the objectives set out in section 161.
(Section 161 is the section that says why spousal support should be awarded.)
If you are asking the court to set aside the parts of an agreement about spousal support, you can make your argument under section 164(3), section 164(5), or both.
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 section 164 on spousal support, discussed above, section 93 provides two legal tests to help the court decide whether an agreement should be set aside. The first test, at section 93(3), 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 section 164(3). The second test allows the court to set aside the agreement, even if there were no problems with the circumstances when the agreement was being negotiated and signed, if the agreement is "significantly unfair." However, to determine significant unfairness, section 93(5) requires the court to look at three factors, not five:
(5) Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:
(a) the length of time that has passed since the agreement was made;
(b) the intention of the spouses, in making the agreement, to achieve certainty;
(c) the degree to which the spouses relied on the terms of the agreement.
In a helpful case from the Supreme Court of British Columbia, 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 in situations that are "unjust or unreasonable." In a 2014 case, 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" with regard to the factors set out in section 93.
If you are asking the court to set aside the parts of an agreement about dividing property or dividing debt, you can make your argument under section 93(3), section 93(5), or both.
Cancelling agreements about property under the Family Relations Act
Agreements between married spouses about property that were made before March 18, 2013, the date when the Family Law Act came into force, have to be changed under the Family Relations Act. The Family Relations Act was the law in British Columbia before the Family Law Act. Section 252(2)(a) of the Family Law Act says that court proceedings to enforce, set aside, or replace an agreement about property division that was signed before the Family Law Act came into force must be started under the Family Relations Act.
If the Family Relations Act applies to an agreement about property, section 65 of that act says that an agreement that is in writing and witnessed by a third party can be set aside if it would be unfair considering six factors:
(a) the duration of the marriage,
(b) the duration of the period during which the spouses have lived separate and apart,
(c) the date when property was acquired or disposed of,
(d) the extent to which property was acquired by one spouse through inheritance or gift,
(e) the needs of each spouse to become or remain economically independent and self sufficient, or
(f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse
Section 68 of the Family Relations Act talks about the variation of agreements that are not in writing or were not witnessed.
However, it's the Family Law Act that applies to agreements about property between unmarried spouses made that were signed before March 18, 2013. The Supreme Court of British Columbia has decided, in B.L.S. v. D.J.S, 2019 BCSC 846, that the new law applies to these agreements even though they were signed before the Family Law Act was law.
Given the additional issues involved in changing agreements made before March 18, 2013, it's really important that you get advice from a family law lawyer before you do anything.
- Spousal support advisory guidelines
- Court orders from Legal Aid BC
- see section on "Change an order or set aside an agreement made in BC"
- Mediate BC website
- Parenting apart from the BC Ministry of Attorney General
- Parenting Arrangements from the Canada Department of Justice
- Family Mediation from the Justice Education Society of BC
- Guide to Mediation in BC from the BC Ministry of Attorney General
- Mediation, collaborative negotiation, and arbitration from Dial-a-Law by the People's Law School
- Parenting After Separation Course from the BC Ministry of Attorney General
- Resolving Disputes Without Going to Court from Dial-a-Law by the People's Law School
- "Separation Agreements: Your Rights and Options" from Legal Aid BC and West Coast LEAF
- "All About Mediation" infographic poster from Legal Aid BC
- "Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce" from Legal Aid BC
- "FAQ of Mediation" video from Mediate BC
- "An Inside Look at Family Mediation" video from Legal Aid BC
- "A Case for Mediation: The Cost-Effectiveness of Civil, Family, and Workplace Mediation" from Mediate BC
- "How Can we Resolve Our Family Law Issue?" from Legal Aid BC
- "Alternatives to Going to Court" from the Justice Education Society of BC
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, March 21, 2021.|
|JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|