Difference between revisions of "Family Law Agreements"

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

Problems can arise when negotiations aren't completely fair. In a 2003 case from the Supreme Court of Canada, Miglin v. Miglin, the court held that family law agreements should not be considered with exactly the same standards that are applied to ordinariy commercial contracts because family law agreements are usually negotiated at "a time of intense personal and emotional turmoil, in which one of both of the parties may be particularly vulnerable." Some of these vulnerabilities were described in a 2000 case from Ontario, Leopold v. Leopold:

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

In a 2009 case, Rick v. Brandsema, the Supreme Court of Canada added another factor to this list, incomplete or misleading financial disclosure.

exploiting a party's emotional or psychological vulnerability;

influence over a party through dominance and oppression;

control over the family finances;

influence over the children's allegiances; or,

access to or control over the release of financial information;

Independent legal advice: Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the same lawyers witness the parties' signatures on the agreement, and execute certificates of independent legal advice.

Respect vulnerabilities: Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in his or her right mind, down tools and come back to the table later. Consider the need for counselling or therapy before continuing.

Make full disclosure: Always make full disclosure of all financial facts, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment account balances, outstanding debts, property values, values of shares and options, art and jewellry appraisals and so on.

Never lie: Intentionally misleading someone about a value, a debt, past and future income expectations or any other relevant factor will always undermine the strength of an agreement. Be scruplously honest and transparent at all times.

Know the law: The Divorce Act and the Family Relations Act say when and why spousal support and child support should be paid. The Divorce Act talks about how much time children should have with their parents. For married couples, the Family Relations Act talks about how assets should be divided. Know how the law treats these different subjects and ensure the agreement roughly reflects the law.