Changing Family Law Agreements: Difference between revisions

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{{JP Boyd on Family Law TOC}}
{{JP Boyd on Family Law TOC}}


After an family law agreement has been signed, four things can happen: the parties follow the agreement and everything continues as it should; the parties agree to do something other than what the agreement requires; circumstances change and the agreement must also change; or, someone refuses to follow the agreement and it must be enforced by the courts.
After a family law agreement has been signed, 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; or, one of the parties refuses to follow the agreement and it must be enforced by the courts.


This page will focus on separation agreements. It will discuss how agreements can be changed without going to court, how agreements can be changed with the intervention of the court, and how agreements can be enforced by the courts.
This page focusses on separation agreements and talks how agreements can be changed without going to court and when the agreements can be set aside by the court. You can learn about how family law agreements are enforced in the ____ page.
 
'''DRAFT'''


==Changing Agreements by Agreement==
==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 results in a court battle. This segment will deal with the easy way; the hard way is dealt with in the following segment which will discuss changing agreements with the intervention of the court.
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 consent to the change. If they 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 change is important enough. Changing an agreement is also called amending the agreement or varying the agreement.
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 party of the order that has to change and then make an order in place of the part that was cancelled.


===Amending an Agreement by Consent===
===Amending an Agreement===


Any agreement can be amended by a later agreement. If the parties to an agreement both believe that their original agreement needs to be amended, and both of the parties agree on exactly how it should be adjusted, the parties can draw up a second agreement variously called an amendment agreement, an amending agreement or an addendum agreement to the original 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 amending an agreement must refer to the original agreement and is usually titled something like "Amendment to the Separation Agreement Executed on 1 April 2008." Amending agreements are usually very short as the idea is to change one particular part of an agreement rather than to rewrite the original agreement in its entirety. 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:
An agreement changing an agreement must refer to the original agreement and is usually titled something like "Amendment to the Separation Agreement Executed 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 original agreement in its entirety. The amending agreement should specify which particular paragraph of the original agreement is being changed, and then set out the new text of that paragraph:


2. The parties agree that Paragraph 23 of the Agreement executed on 1 April 2008 will be cancelled and replaced with the following:
<blockquote><tt>2. The parties agree that Paragraph 23 of the Agreement executed on 1 April 2010 will be cancelled and be replaced with the following:</tt></blockquote>
Sally will 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.
<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>
3. Sally's income is $45,000 per year as at the date of the execution of this Amending Agreement. The parties agree that Sally's child support obligation, set out at Paragraph 28 of the Agreement executed on 1 April 2008, will be $684 per month, commencing on the first day of the month followng the execution of this Amending Agreement.
<blockquote><tt>3. Sally's income is $45,000 per year as at the date of the execution of this Amending Agreement. The parties agree that Sally's child support obligation, set out at Paragraph 28 of the Agreement executed on 1 April 2010, will be $684 per month, commencing on the first day of the month following the execution of this Amending Agreement.</tt></blockquote>
Just like the original agreement, the amending agreement must be formally executed by both parties.
 
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===
===Amending an Agreement through Negotiation===


A well-written agreement will usually set out a way that the parties will resolve disputes arising from the agreement. Sometimes this mechanism requires that the parties to go to court; sometimes this mechanism prescribes some other means of dispute resolution, such as mediation or arbitration.
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 third party, the mediator, who is skilled in family law issues and works with the parties to get them to an agreement.
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 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 limited to that one issue should be considered since an arbitrator's job is to impose a settlement on the parties, after listening to both sides, and it's cheaper to arbitrate rather than to litigate.
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 limited to 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 is usually better for the parties to arrive at 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 may very well make a decision no one is happy with.
Whatever method is chosen, it's 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 may make a decision that no one is entirely happy with.


See the section Alternatives to Court for more information on mediation and arbitration.
See the chapter ____ for more information on mediation and arbitration.


==Judicial Intervention==
==Intervention by the Courts==


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 which is the product of an often lengthy process of negotiation, and the courts are usually unwilling to disturb an agreement which two people freely entered into, without a very good reason for doing so. The courts will be especially reluctant to alter a final order that was the product of a separation agreement.
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 set aside just part of the agreement.


The questions that the court will want answered are: What has changed between the date of the execution of the agreement such that the agreement should be changed despite the objections of the other party? Is there some aspect of the agreement or how the agreement was made that demands the intervention of the court? Was there some fundamental unfairness surrounding the negotiation of the agreement such that the whole agreement should be set aside?
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 which 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.


A party asking the court to interfere with an agreement must, in general, show that
===Setting Aside Agreements Under the Law of Contracts===


the agreement is fundamentally unfair or that it would be unfair to hold the party to the terms of the agreement, or
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:
circumstances have changed significantly since agreement was executed such that it is no longer appropriate
before the court will consider making an order different than the terms set out in an agreement.


The Supreme Court of Canada discussed the fairness issue in depth in a 2009 case called Rick v. Brandsema. In this case, the court talks about how family law agreements are different from commercial agreements because of the unique emotional circumstances surrounding the negotiation of family law agreements — when you're signing a car lease, you're not doing it when you've just ended a long cohabiting relationship with the dealer. In Rick, the court emphasized that fairness means:
#the agreement was ''not freely signed'', 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;
bargaining in the utmost good faith;
#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant and signed it by ''mistake'';
being completely honest and forthcoming during negotiations;
#the agreement was signed without ''full disclosure'' having been made; or
making full and complete financial disclosure, whether full financial disclosure has been requested or not; and,
#a party signed the agreement because ''misleading information'' had been provided.
not taking advantage of someone at a time of emotional or psychological weakness or vulnerability.
If an agreement wasn't fairly negotiated, it may be vulnerable to challenge later on down the road.
 
===The Validity of Agreements===
 
Just like a commercial contract, the validity of a family agreement can be challenged on one or more of the following grounds:
 
the agreement was not freely entered into, in other words if one or both of the parties were under duress or coercion when the agreement was negotiated or executed;
the agreement is "unconscionable," in other words if the agreement is obviously and seriously unfair to one of the parties;
one of the parties entered into the agreement without the benefit of independant legal advice and did not fully understand what the agreement meant;
one of the parties entered into the agreement without full disclosure being made by the other party or based on incorrect information supplied by the other party; or,
one of the parties entered into the agreement or a part of the agreement by mistake.


====Duress, Coercion, Unconscionability and Mistake====
====Duress, Coercion, Unconscionability and Mistake====
Line 68: Line 57:
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.
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.


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 the execution of an agreement in circumstances of extreme emotional stress, such as just before a wedding, following a hospitalization, or during an emotional breakdown.
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 one party's assets.
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 one party's assets.
Line 76: Line 65:
A spouse may be able to challenge the validity of an agreement where he or she did not receive independent legal advice before executing the agreement. Independent legal advice helps to ensure that both parties are on a more or less equal footing going into the agreement, and to ensure that one party doesn't unintentionally enter into an unfair agreement.
A spouse may be able to challenge the validity of an agreement where he or she did not receive independent legal advice before executing the agreement. Independent legal advice helps to ensure that both parties are on a more or less equal footing going into the agreement, 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 executed. In most situations, the absence of independent legal advice will not be enough to overturn an agreement by itself.
There is, however, no requirement that independent legal advice be sought before an agreement is executed. 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====
====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 thay 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.
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 of the part in question.
 
====Guardianship====


===Change of Circumstances: Reassessing Support===
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.


The court can make an order for spousal or child support, despite the existence of a valid separation agreement which might already deal with these issues. The court will, however, be strongly influenced by what an agreement has to say about support and will give the agreement a great deal of weight in deciding whether to make an order any different than what the agreement sets out.
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.


====Child Support====
====Parental Responsibilities, Parenting Time and Contact====


As in all matters concerning children, the courts' primary concern is with the best interests of the child. The courts will rarely vary an agreement that provides that child support will be paid in accordance with the federal Child Support Guidelines to some other amount of support. By the same token, the courts may be reluctant to reduce a child support provision which is higher than what the Guidelines provide where the higher level is reasonable, because it is logically in the best interests of the child to have the benefit of as much support as possible. The courts will almost always increase a provision which is less than what the Guidelines would mandate.
Under s. 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:


The court will generally make an order for child support, including an order which is different than what an agreement requires, if:
<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 payor's income has increased;
Section 58(4) says almost exactly the same about agreements for contact.
the payor's income has decreased;
one or more children is no longer living mostly with the parent receiving support;
one or more children is now spending 40% or more of their time with the payor; or,
one or more children is no longer entitled to receive support.
See the chapter Child Support > Making Changes for more information.


====Spousal Support: Agreements for the Payment of Support====
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.


Both the Divorce Act and the Family Relations Act allow the court to make an order for spousal support contrary to the terms of an existing separation agreement. In making such an order, however, the court is required to bear the terms of the agreement in mind. This will affect the court's decision, as there may be a presumption that the amount agreed to is fair and reasonable.
====Child Support====


In Pelech v. Pelech, a 1987 case of the Supreme Court of Canada, the court had this to say about the matter:
As in all matters concerning children, the courts' only concern is the best interests of the child. The courts 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 which 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 much more inclined to interfere with a provision of an agreement that calls for a lesser amount of support than what the Guidelines require.


"Where the parties have negotiated their own agreement, freely and on the advice of independent legal counsel, as to how their financial affairs should be settled on the breakdown of their marriage, and the agreement is not unconscionable in the substantive law sense, it should be respected. People should be encouraged to take responsibility for their own lives and their own decisions."
Section 148(3) of the ''Family Law Act'' says this:
As a result, to vary an agreement for spousal support, the person seeking the change must show that there has been a change in circumstances that is "substantial, unforeseen and of a continuing nature" related to the marriage. While some courts have held that a failure to become self-sufficient and find gainful employment is enough of a change in circumstances to warrant changing an agreement, in general the applicant must demonstrate that there has been a serious and unexpected change in his or her circumstances.


The "change of circumstances" which might justify the court making an order for spousal support different than what an agreement provides for include circumstances in which:
<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>


the recipient's income has increased such that he or she requires less support;
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 recipient has remarried or entered into a new relationship such that he or she is being supported by someone else;
the payor has retired; or,
the payor's income has decreased and is expected to continue to remain at the lower level.
Note that the publication of the Spousal Support Advisory Guidelines is not a change in circumstances that will result in the court making an order for spousal support.


See the chapter Spousal Support > Making Changes for more information.
#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: Agreements Not Requiring Support====
====Spousal Support====


It is a bit harder to challenge an agreement which says support won't be paid. In cases like this, the person claiming spousal support has to show why he or she shouldn't be held to the bargain that was struck.
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.  


In a 2003 case from the Supreme Court of Canada, Miglin v. Miglin, the court described a test that should be used when someone wants to get spousal support after signing a separation agreement which says it shouldn't 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:


First, the court must decide whether the agreement was negotiated fairly. Was there an equality of bargaining power? Was someone pushed into the deal?
<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>
Next, if the circumstances surrounding the agreement were reasonable, the the court consider whether the agreement as a whole met the objectives for spousal support set out in s. 15.2 of the Divorce Act at the time it was made.
<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>
Finally, even if the agreement met the Divorce Act objectives then, the court must decide if it continues to meet them now, when the agreement is being challenged. Does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the Divorce Act?
<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>
If the person seeking spousal support is shown to be entitled to receive support and one or more parts of this test are met, then the court may decide that support should be paid regardless of what the parties agreed to in their separation agreement.
<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>


===Unfairness: The Division of Property===
That last part, at s. 164(3)(d), is about the common law of contracts, discussed above.


The provincial Family Relations Act deals with the division of family assets between spouses. The assets of unmarried couples are usually divided under the law of trusts or the Partition of Property Act, however the Family Relations Act will apply where a unmarried couple has made an agreement which deals with assets, under s. 120.1 of the act.
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:


There are three critical sections of this act which bear on the division of property under separation agreements:
<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>


61 (1) This section defines marriage agreement for the purposes of this Part and this definition applies to marriages entered into, marriage agreements made and to property of a spouse acquired before or after March 31, 1979.
Section 161 is the section that says why spousal support should be awarded.  
(2) A marriage agreement is an agreement entered into by a man and a woman before or during their marriage to each other to take effect on the date of their marriage or on the execution of the agreement, whichever is later, for
(a) management of family assets or other property during marriage, or
(b) ownership in, or division of, family assets or other property during marriage, or on the making of an order for dissolution of marriage, judicial separation or a declaration of nullity of marriage.
(3) A marriage agreement, or an amendment or rescission of a marriage agreement, must be in writing, signed by both spouses, and witnessed by one or more other persons.
65 (1) If the provisions for division of property between spouses under section 56, Part 6 or their marriage agreement, as the case may be, would be unfair having regard to
(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,
the Supreme Court, on application, may order that the property covered by section 56, Part 6 or the marriage agreement, as the case may be, be divided into shares fixed by the court.
(2) Additionally or alternatively, the court may order that other property not covered by section 56, Part 6 or the marriage agreement, as the case may be, of one spouse be vested in the other spouse.
68 (1) This section applies to an ante nuptial or post nuptial settlement that is not a marriage agreement under this Part.
(2) The Supreme Court may, on application, not more than 2 years after an order for dissolution of marriage, for judicial separation or declaring a marriage null and void, inquire into an ante nuptial or post nuptial settlement affecting either spouse and, whether or not there are children, make any order that, in its opinion, should be made to provide for the application of all or part of the settled property for the benefit of either or both spouses or a child of a spouse or of the marriage.
(3) The Supreme Court may, on application, if circumstances warrant, extend the period during which an application may be made or power exercised under this section.
To simplify things a bit, s. 61 defines "marriage agreement" for the purposes of the parts of the act which deals with the division of assets, Parts 5 and 6. Section 65 allows the court to vary the division of property set out by an agreement where the division prescribed by the agreement is unfair. Section 68 applies to agreements that aren't "marriage agreements" as defined by s. 61, and allows the court to review such agreements.


The effect of these sections is to allow the court to vary the parts of a separation agreement dealing with property where the agreement is unfair, so long as the agreement qualifies as a "marriage agreement" under s. 61. For the purposes of s. 61, a "marriage agreement" must:
====Property and Debt====


be between married spouses;
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, 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:
concern family property, at least in part;
be in writing; and,
be signed by both spouses whose signatures are witnessed.
In the case of Gold v. Gold, a 1993 case of the Court of Appeal for British Columbia, the court had this to say about fairness:


"If the agreement is unfair within one or more of the [criteria listed in s. 65], then the Court has a wide discretion to reapportion the family property to achieve fairness. However, I find nothing in the Family Relations Act, nor in the authorities, which suggests that only equality or near-equality can be fair. ... Many divisions of family property must be unequal in order to be fair."
<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>
See the sections Unmarried Couples and Family Assets for more information about the division of assets.
<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>


==Further Reading in this Chapter==
==Further Reading in this Chapter==
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==Page Resources and Links==
==Page Resources and Links==
Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.


===Legislation===
===Legislation===


*Supreme Court Act
f
*SC rules of court
*Provincial Court Act
*PC rules of court


===Links===
===Links===


* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
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...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.
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{{JP Boyd on Family Law Navbox|type=chapters}}
{{JP Boyd on Family Law Navbox|type=chapters}}
The questions that the court will want answered are: What has changed between the date of the execution of the agreement such that the agreement should be changed despite the objections of the other party? Is there some aspect of the agreement or how the agreement was made that demands the intervention of the court? Was there some fundamental unfairness surrounding the negotiation of the agreement such that the whole agreement should be set aside?
A party asking the court to interfere with an agreement must, in general, show that
the agreement is fundamentally unfair or that it would be unfair to hold the party to the terms of the agreement, or
circumstances have changed significantly since agreement was executed such that it is no longer appropriate
before the court will consider making an order different than the terms set out in an agreement.
The Supreme Court of Canada discussed the fairness issue in depth in a 2009 case called Rick v. Brandsema. In this case, the court talks about how family law agreements are different from commercial agreements because of the unique emotional circumstances surrounding the negotiation of family law agreements — when you're signing a car lease, you're not doing it when you've just ended a long cohabiting relationship with the dealer. In Rick, the court emphasized that fairness means:
bargaining in the utmost good faith;
being completely honest and forthcoming during negotiations;
making full and complete financial disclosure, whether full financial disclosure has been requested or not; and,
not taking advantage of someone at a time of emotional or psychological weakness or vulnerability.
If an agreement wasn't fairly negotiated, it may be vulnerable to challenge later on down the road.

Revision as of 04:26, 10 March 2013

After a family law agreement has been signed, 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; or, one of the parties refuses to follow the agreement and it must be enforced by the courts.

This page focusses on separation agreements and talks how agreements can be changed without going to court and when the agreements can be set aside by the court. You can learn about how family law agreements are enforced in the ____ page.

DRAFT

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 party of the order 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 Executed 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 original agreement in its entirety. The amending agreement should specify which particular paragraph of the original agreement is being changed, and then set out the new text of that paragraph:

2. The parties agree that Paragraph 23 of the Agreement executed on 1 April 2010 will be cancelled and be replaced with the following:

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.

3. Sally's income is $45,000 per year as at the date of the execution of this Amending Agreement. The parties agree that Sally's child support obligation, set out at Paragraph 28 of the Agreement executed on 1 April 2010, will be $684 per month, commencing on the first day of the month following the execution of this Amending Agreement.

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 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 limited to 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 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 may make a decision that no one is entirely happy with.

See the chapter ____ for more information on mediation and 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 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 which 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:

  1. the agreement was not freely signed, in other words, a party was under duress when the agreement was negotiated or executed;
  2. the agreement is unconscionable, in other words, the agreement is obviously and seriously unfair to a party;
  3. a party signed the agreement without independent legal advice, did not fully understand what the agreement meant and signed it by mistake;
  4. the agreement was signed without full disclosure having been made; or
  5. 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 one 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 executing the agreement. Independent legal advice helps to ensure that both parties are on a more or less equal footing going into the agreement, 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 executed. 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:

(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 subject of the of the part 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:

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 s. 37(2) of the act, and, when family violence is a factor, also at s. 38.

Child Support

As in all matters concerning children, the courts' only concern is the best interests of the child. The courts 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 which 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 much more inclined to interfere with a provision of an agreement that calls for a lesser amount of support than what the Guidelines require.

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

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

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

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

Spousal Support

Section 164 of the Family Law Act talks about when the parts of an agreement about spousal 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:

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

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

(5) Despite subsection (3), the court may set aside or replace with an order made under this Division all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:

(a) the length of time that has passed since the agreement was made;

(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;

(c) the intention of the spouses, in making the agreement, to achieve certainty;

(d) the degree to which the spouses relied on the terms of the agreement;

(e) the degree to which the agreement meets the objectives set out in section 161.

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

Property and 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, s. 93 provides two legal tests to help the court decide whether an agreement should be set aside. The first test requires the court to look at what happened when the agreement was being negotiated and signed and is exactly the same as the test at s. 164(3). The second test allows the court set aside the agreement, even if there are no problems with the circumstances when the agreement was being negotiated and signed, if the agreement is "significantly unfair". However, to determine significant unfairness under s. 93(5), looks at three factors not five:

(5) Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:

(a) the length of time that has passed since the agreement was made;

(b) the intention of the spouses, in making the agreement, to achieve certainty;

(c) the degree to which the spouses relied on the terms of the agreement.

Further Reading in this Chapter

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The questions that the court will want answered are: What has changed between the date of the execution of the agreement such that the agreement should be changed despite the objections of the other party? Is there some aspect of the agreement or how the agreement was made that demands the intervention of the court? Was there some fundamental unfairness surrounding the negotiation of the agreement such that the whole agreement should be set aside?

A party asking the court to interfere with an agreement must, in general, show that

the agreement is fundamentally unfair or that it would be unfair to hold the party to the terms of the agreement, or circumstances have changed significantly since agreement was executed such that it is no longer appropriate before the court will consider making an order different than the terms set out in an agreement.

The Supreme Court of Canada discussed the fairness issue in depth in a 2009 case called Rick v. Brandsema. In this case, the court talks about how family law agreements are different from commercial agreements because of the unique emotional circumstances surrounding the negotiation of family law agreements — when you're signing a car lease, you're not doing it when you've just ended a long cohabiting relationship with the dealer. In Rick, the court emphasized that fairness means:

bargaining in the utmost good faith; being completely honest and forthcoming during negotiations; making full and complete financial disclosure, whether full financial disclosure has been requested or not; and, not taking advantage of someone at a time of emotional or psychological weakness or vulnerability. If an agreement wasn't fairly negotiated, it may be vulnerable to challenge later on down the road.