Changing Family Law Agreements: Difference between revisions

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{{JP Boyd on Family Law TOC}}
{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|CoAuthor = [[Beatrice McCutcheon]]
|ChapterEditors = [[Beatrice McCutcheon]] and [[Gagan Mann]]
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|link = [https://family.legalaid.bc.ca/bc-legal-system/legal-forms-documents/agreements Separation Agreements]
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After a family law agreement has been signed, one of three things can happen:


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.
#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 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 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 [[Enforcing Family Law Agreements|previous section]] in this chapter talks about how family law agreements are enforced.


==Changing Agreements by Agreement==
==Changing agreements with another 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 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 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 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.


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


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 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 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 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.  


2. The parties agree that Paragraph 23 of the Agreement executed on 1 April 2008 will be cancelled and replaced with the following:
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:
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.
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.
Just like the original agreement, the amending agreement must be formally executed by both parties.


===Amending an Agreement through Negotiation===
<blockquote><tt>3. The parties agree that Paragraph 23 of the Agreement made on 1 April 2022 will be cancelled and be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>"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."</tt></blockquote></blockquote>
<blockquote><tt>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.</tt></blockquote>


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.
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.


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.
===Resolving disputes about amendments===


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.
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.


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.
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 <span class="noglossary">third party</span>, a ''mediator'', who is skilled in family law issues and works with the parties to get them to a new agreement.


See the section Alternatives to Court for more information on mediation and arbitration.
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 <span class="noglossary">decision</span>, 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.


==Judicial Intervention==
See the chapter [[Resolving Family Law Problems out of Court]] for more information on [[Family Law Mediation]] and [[Family Law Arbitration]].


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.
==Challenging agreements by going to court==


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?
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]]''.


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


the agreement is fundamentally unfair or that it would be unfair to hold the party to the terms of the agreement, or
===Cancelling agreements under the 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:
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:


bargaining in the utmost good faith;
*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,
being completely honest and forthcoming during negotiations;
*the agreement is ''unconscionable'' &mdash; in other words, the agreement is obviously and seriously unfair to a party with no reason for that level of unfairness,
making full and complete financial disclosure, whether full financial disclosure has been requested or not; and,
*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'',
not taking advantage of someone at a time of emotional or psychological weakness or vulnerability.
*the agreement was signed without ''full disclosure'' having been made, or
If an agreement wasn't fairly negotiated, it may be vulnerable to challenge later on down the road.
*they were tricked into signing the agreement because ''misleading information'' had been provided by the other party.


===The Validity of Agreements===
Arguments like these challenge the ''validity'' of an agreement.


Just like a commercial contract, the validity of a family agreement can be challenged on one or more of the following grounds:
====Duress, coercion, unconscionability and mistake====


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 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.  
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====
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.


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.
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.


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.
====Lack of independent legal advice====


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.
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.


====Lack of Independent Legal Advice====
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.


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.
====Misleading information and the failure to make full disclosure====


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.
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.


====Fraud and the Failure to Make Full Disclosure====
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.


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.
===Cancelling agreements under the ''Family Law Act''===


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


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.
<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>


====Child Support====
The legal test that the court must apply to set aside part of an agreement changes depending on the subjects covered by those parts.


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.
====Guardianship====


The court will generally make an order for child support, including an order which is different than what an agreement requires, if:
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.


the payor's income has increased;
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.
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====
====Parental responsibilities, parenting time and contact====


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.
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.  


In Pelech v. Pelech, a 1987 case of the Supreme Court of Canada, the court had this to say about the matter:
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.


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


the recipient's income has increased such that he or she requires less support;
<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 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.
Section 58(4) says almost exactly the same about agreements for contact.


====Spousal Support: Agreements Not Requiring Support====
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.


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.
====Child support====


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:
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.


First, the court must decide whether the agreement was negotiated fairly. Was there an equality of bargaining power? Was someone pushed into the deal?
Section 148(3) of the ''Family Law Act'' says this:
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.
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?
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.


===Unfairness: The Division of Property===
<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 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.
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:


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


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.
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.
(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:
====Spousal support====


be between married spouses;
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.  
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."
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:
See the sections Unmarried Couples and Family Assets for more information about the division of assets.
 
<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 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:
 
<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.)
 
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:
 
<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 an often referred to case from the BC Supreme Court, [https://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 in situations that are "unjust or unreasonable."  In [http://canlii.ca/t/g8mqv ''Remmem v. Remmem''], 2014 BCSC 1552, the BC Supreme Court 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.
 
These three factors — passage of time, intention to achieve certainty through the agreement, and degree of reliance on the terms of the agreement — could themselves show that an agreement is ''significantly unfair'', but the court can also consider these factors in deciding whether or not a significantly unfair agreement should be set aside or left in place. More recently, the BC Court of Appeal in ''[https://canlii.ca/t/jd2rs Azanchi v. Mobrhan-Shafiee]'', 2021 BCCA 55, said "a court may determine that, despite significant unfairness, an agreement should not be set aside if, for example, the parties have relied heavily on its terms in making their lifestyle choices, or have deliberately risked having to live with an unfair agreement because they placed a high value on certainty."
 
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 18 March 2013, the date when the ''[[Family Law Act]]'' came into force, have to be changed under the ''[http://canlii.ca/t/840n 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:
 
<blockquote><tt>(a) the duration of the marriage,</tt></blockquote>
<blockquote><tt>(b) the duration of the period during which the spouses have lived separate and apart,</tt></blockquote>
<blockquote><tt>(c) the date when property was acquired or disposed of,</tt></blockquote>
<blockquote><tt>(d) the extent to which property was acquired by one spouse through inheritance or gift,</tt></blockquote>
<blockquote><tt>(e) the needs of each spouse to become or remain economically independent and self sufficient, or</tt></blockquote>
<blockquote><tt>(f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse</tt></blockquote>
 
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 18 March 2013. The Supreme Court of British Columbia has decided, in [http://canlii.ca/t/j0s71 ''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 18 March 2013, it's really important that you get advice from a family law lawyer before you do anything.  
 
<!---HIDDEN


==Further Reading in this Chapter==
==Further Reading in this Chapter==
Line 170: Line 206:


* other chapters
* other chapters
END HIDDEN--->


==Page Resources and Links==
==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
* ''[https://canlii.ca/t/8q3k Family Law Act]''
*SC rules of court
* ''[https://canlii.ca/t/551f9 Divorce Act]''
*Provincial Court Act
* ''[http://canlii.ca/t/840n Family Relations Act]'' (Repealed)
*PC rules of court
* [https://canlii.ca/t/80mh Child Support Guidelines]


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


* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
*[https://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal support advisory guidelines]
...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.
*[https://family.legalaid.bc.ca/bc-legal-system/court-orders/change-order-or-set-aside-agreement-made-bc Change an Order or Set Aside an Agreement Made in BC] from Legal Aid BC
*[https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/family-law/parenting-apart Parenting Apart] from the website of the BC Ministry of Attorney General
*[https://justice.gc.ca/eng/fl-df/fact-fiches.html Parenting Arrangements After Separation or Divorce] from the website of the Department of Justice
*[https://www.youtube.com/watch?v=p89vyvgWQ9s "An Inside Look at Family Mediation"] video from Legal Aid BC and CLEBC
*[https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/mediation/about-mediation Guide to Mediation in BC] from the BC Ministry of Attorney General
*[https://www.clicklaw.bc.ca/resources/dial-law-mediation-collaborative-negotiation-and-arbitration Mediation, Collaborative Negotiation, and Arbitration] from Dial-a-Law by the People's Law School
*[https://parenting-after-separation.jibc.ca/ Parenting After Separation] course from the BC Ministry of Attorney General's Family Justice Services Division
* [https://dialalaw.peopleslawschool.ca/resolving-disputes-without-going-to-court/  Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School


===Resources===
*[https://westcoastleaf.org/work/separation-agreements/ Separation Agreements: Your Rights and Options] from Legal Aid BC and West Coast LEAF
*[https://family.legalaid.bc.ca/resources/living-together-or-living-apart ''Living Together or Living Apart''] from Legal Aid BC
*[https://mediatebc.com/our-services/public-education/ask-a-mediator/ Ask a Mediator] from Mediate BC, offers free online appointments with trained mediators
*[https://www.youtube.com/watch?v=p89vyvgWQ9s "An Inside Look at Family Mediation"] video from Legal Aid BC and CLEBC
*[https://perma.cc/WFB7-2F4R “A Case for Mediation: The Cost-Effectiveness of Civil, Family, and Workplace Mediation” (PDF)] from Mediate BC Society
*[https://perma.cc/M6NT-JAHC "How Can We Resolve Our Family Law Issues?" (PDF)] from Legal Aid BC
{{REVIEWED | reviewer = [[Beatrice McCutcheon]], 22 November 2023}}


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Latest revision as of 17:32, 21 August 2024

JP Boyd on Family Law
JP Boyd on Family Law
This page is

from the Clicklaw Wikibook JP Boyd on Family Law. See the full contents

and the list of contributors.
Getting Started
Introduction · Family Law in BC
Definitions · Legislation
Divorce Act Basics · Family Law Act Basics
Chapters
Family Law Agreements
 · Cohabitation Agreements

 · Marriage Agreements

 · Separation Agreements

 · Changing Agreements

 · Enforcing Agreements
Court Forms & Documents
Supreme Court: Forms & Examples
Provincial Court: Forms & Examples
Other Family Law Forms & Documents

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From the Author
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Legal Aid BC's
Family Law in BC website
has information on
Separation Agreements.


After a family law agreement has been signed, one of three things can happen:

  1. the people who signed the agreement, the parties to the agreement, follow the agreement and everything continues as it should,
  2. the circumstances of the parties or a child change, and their agreement must also change, or
  3. 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.

Amending agreements

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.

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

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.

Guardianship

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.

Child support

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.

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 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 an often referred to case from the BC Supreme Court, 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 Remmem v. Remmem, 2014 BCSC 1552, the BC Supreme Court 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.

These three factors — passage of time, intention to achieve certainty through the agreement, and degree of reliance on the terms of the agreement — could themselves show that an agreement is significantly unfair, but the court can also consider these factors in deciding whether or not a significantly unfair agreement should be set aside or left in place. More recently, the BC Court of Appeal in Azanchi v. Mobrhan-Shafiee, 2021 BCCA 55, said "a court may determine that, despite significant unfairness, an agreement should not be set aside if, for example, the parties have relied heavily on its terms in making their lifestyle choices, or have deliberately risked having to live with an unfair agreement because they placed a high value on certainty."

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 18 March 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 18 March 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 18 March 2013, it's really important that you get advice from a family law lawyer before you do anything.


Resources and links

Legislation

Links


Resources


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Beatrice McCutcheon, 22 November 2023.


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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.
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