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Difference between revisions of "Changing Family Law Orders, Awards and Agreements Involving Spousal Support"
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Changing Family Law Orders, Awards and Agreements Involving Spousal Support (view source)
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==Changing Agreements for Spousal Support== | ==Changing Agreements for Spousal Support== | ||
People can reach an agreement that spousal support will be paid | People can reach an agreement that spousal support will or will not be paid, without having to go to court. Usually a deal on spousal support is worked out in a separation agreement, but marriage agreements and cohabitation agreements can also talk about whether support will be payable when a relationship ends. Family law agreements are discussed in more detail in the _________ chapter. | ||
===Family Law Agreements and Contract Law=== | ===Family Law Agreements and Contract Law=== | ||
Family law agreements are private contracts reached between two people. While family law agreements can be attacked and enforced on the principles of contract law, the support provisions of an agreement can also be argued under the | Family law agreements are private contracts reached between two people. While family law agreements can be attacked and enforced on the principles of contract law, the support provisions of an agreement can also be argued under the ''Divorce Act''. This is because a couple's private agreement on spousal support doesn't oust the authority of the court to make an order for support under the ''Divorce Act''. | ||
However, the court will usually give considerable weight to family law agreements and will prefer to make an order that reflects the terms of an agreement. Without proof of something like duress or coercion, or some other problem, the court will treat the agreement as representing the honest and informed intentions of the parties to settle their dispute. | |||
Because of the importance the court will usually give to an agreement, it can sometimes be necessary to attack the agreement itself. An agreement might be found to be invalid for one or more of the following reasons: | Because of the importance the court will usually give to an agreement, it can sometimes be necessary to attack the agreement itself under the law that applies to contacts. An agreement might be found to be invalid for one or more of the following reasons: | ||
one of the parties was forced to enter into the agreement; | #one of the parties was forced to enter into the agreement; | ||
one party was too much under the influence or control of the other party in consenting to the terms of the agreement; | #one party was too much under the influence or control of the other party in consenting to the terms of the agreement; | ||
the agreement is fundamentally unfair; or, | #the agreement is fundamentally unfair; or, | ||
one party lied to the other party or hid information from that party, and these misleading representations were the basis on which the agreement was executed | #one party lied to the other party or hid information from that party, and these misleading representations were the basis on which the agreement was executed. | ||
All of these arguments are based on the law of contracts, not on a particular piece of legislation. | |||
If the court sets aside an agreement for spousal support, the person asking for support must convince the court that it should make an order for spousal support, under s. 15.2 of the ''Divorce Act'' or s. 165 of the ''Family Law Act''. This application will be treated in the same way that all other applications for support are treated. | |||
===Agreements for Spousal Support and the ''Family Law Act''=== | |||
The ''Family Law Act'' provides some important rules about agreements dealing with spousal support. First, under s. 165(3), the court cannot make an order for spousal support if there is an agreement on spousal support, including an agreement that support not be paid, until the agreement is set aside. Second, under s. 164, two tests are set out to help the court decide when an agreement on spousal support should be set. | |||
Under the first test, at s. 164(3), the court must look at the situation of the parties when they were negotiating and executing the agreement. Like in the ''Miglin'' case, discussed above, the court is required to consider whether these circumstances existed when the parties were making their agreement: | |||
<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><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><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote> | |||
<blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote> | |||
The last part of this test, at subection (b), is about whether there is a defect under the law of contracts that might make the agreement void or voidable. The other parts of the test are all about the fairness parties' negotiations. | |||
Now, even if there are no issues with an agreement under s. 164(3), the second test, at s. 164(5), allows the court to set aside agreements that are "signficantly unfair" taking into account: | |||
<blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></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><tt>(c) the intention of the spouses, in making the agreement, to achieve certainty;</tt></blockquote> | |||
<blockquote><tt>(d) the degree to which the spouses relied on the terms of the agreement;</tt></blockquote> | |||
<blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote> | |||
Section 161, mentioned in subsection (e), is the part of the act that sets out the objectives of spousal support. | |||
If the court sets aside an agreement for spousal support, the person asking for support must convince the court that it should make an order for spousal support, under s. 165 of the ''Family Law Act''. This application will be treated in the same way that all other applications for support are treated. | |||
===Amending the Agreement=== | ===Amending the Agreement=== | ||
It may be possible to avoid court altogether if the | It may be possible to avoid court altogether if the spouses can agree about the new arrangemetns and are willing to change the part of the agreement which deals with spousal support. All things considered, this is a much cheaper and much less confrontational way of dealing with the problem. It may well be that the payor is willing to agree to continue or start paying support, or that recipient is willing to agree to a reduction in the amount of support paid. | ||
Family law agreements are changed by executing a another written agreement which updates the original agreement. The agreements are usually called | Family law agreements are changed by executing a another written agreement which updates the original agreement. Changing an agreement is called ''amending'' the agreement. The agreements are usually called ''amending agreements'', ''amendment agreements'', ''addendum agreements'' or something else to that effect and only deal with the part of the original agreement that needs to be changed. They are much shorter than the agreements that they amend, and the text of the agreement usually says something like this: | ||
<blockquote><tt>Frank and Anne agree that their separation agreement, executed on 1 January 2012, shall be amended by cancelling Paragraph 12 of that agreement and replacing it with the following:</tt></blockquote> | |||
Neither party shall be entitled to receive spousal support from the other. | <blockquote><tt>Neither party shall be entitled to receive spousal support from the other.</tt></blockquote> | ||
An amending agreement can also: | |||
#reduce the amount someone must pay as spousal support; | |||
#increase the amount payable as spousal support; or, | |||
#impose a new obligation to pay support. | |||
==Further Reading in this Chapter== | ==Further Reading in this Chapter== | ||
