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Difference between revisions of "Agreements after Separation"
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{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge | {{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge | ||
|CoAuthor = [[Beatrice McCutcheon]] | |||
|ChapterEditors = [[Beatrice McCutcheon]] and [[Gagan Mann]] | |ChapterEditors = [[Beatrice McCutcheon]] and [[Gagan Mann]] | ||
}} | }} | ||
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The whole point of making a separation agreement is so that, at some later time, the contract will be enforceable in court if one of the parties fail to live up to it. As such, the agreement must be capable of being enforced by the court and it must be able to withstand a challenge in court. | The whole point of making a separation agreement is so that, at some later time, the contract will be enforceable in court if one of the parties fail to live up to it. As such, the agreement must be capable of being enforced by the court and it must be able to withstand a challenge in court. | ||
Separation agreements must follow certain basic rules, including these: | Separation agreements must follow certain basic rules in order to be legally binding and enforceable, including these: | ||
*The agreement must be in writing. | *The agreement must be in writing. | ||
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It's important to know that the courts will rarely if ever uphold an agreement that attempts to avoid a statutory obligation. Child support, for example, is a positive, almost absolute, obligation all parents have toward their children. The court will not follow an agreement which says a parent will never have to pay child support. | It's important to know that the courts will rarely if ever uphold an agreement that attempts to avoid a statutory obligation. Child support, for example, is a positive, almost absolute, obligation all parents have toward their children. The court will not follow an agreement which says a parent will never have to pay child support. | ||
It's also important to know that the courts can uphold an oral agreement | It's also important to know that the courts can uphold an oral agreement, but there are significant disadvantages to them as compared to written agreements (including how legally binding they are on a judge). See the note about oral agreements in the introductory section on [[Family Law Agreements]] within this chapter. If, as in ''[https://canlii.ca/t/jtklq Voitchovsky v Gibson]'', 2022 BCCA 428, there is evidence that both parties clearly understood the essential terms of the oral agreement, showed intention to be bound by those terms, and conducted themselves over the years in way that was consistent with the oral agreement, then the court may determine there was an agreement. However, it's easy to disagree about whether an oral agreement was ever reached, and if so on what terms. It's always best to put agreements in writing. | ||
==The possible subjects of a separation agreement== | ==The possible subjects of a separation agreement== | ||
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==Separation agreements filed in court== | ==Separation agreements filed in court== | ||
Agreements that are filed in court can be enforced as if they were orders of the court in which they are filed. Among other things, this means that the Family Maintenance Enforcement Program can enforce an agreement for support exactly as it would enforce an order for support. | Agreements that are filed in court can be enforced as if they were orders of the court in which they are filed. Among other things, this means that the BC Family Maintenance Agency (formerly the Family Maintenance Enforcement Program) can enforce an agreement for support exactly as it would enforce an order for support. | ||
To find out how to file an agreement, or to see if your agreement has been filed in court, read [[How Do I File an Agreement in Court?]]. It's located in the Helpful Guides & Common Questions part of this resource under Separation Agreements. | To find out how to file an agreement, or to see if your agreement has been filed in court, read [[How Do I File an Agreement in Court?]]. It's located in the Helpful Guides & Common Questions part of this resource under Separation Agreements. | ||
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* [https://clicklaw.bc.ca/resource/4653 Legal forms & documents] from Legal Aid BC | * [https://clicklaw.bc.ca/resource/4653 Legal forms & documents] from Legal Aid BC | ||
**Under the section "Agreements" see "Making an agreement after you separate" and "Who can help you reach an agreement?" | **Under the section "Agreements" see "Making an agreement after you separate" and "Who can help you reach an agreement?" | ||
*[https://www. | *[https://www.bcfma.ca/ BC Family Maintenance Agency] website from the Government of British Columbia | ||
* [https://www.familieschange.ca/ Families Change] website from the Justice Education Society of BC and BC Ministry of Attorney General | * [https://www.familieschange.ca/ Families Change] website from the Justice Education Society of BC and BC Ministry of Attorney General | ||
*[https://www.clicklaw.bc.ca/resource/4639 Legal Aid BC's Family Law website's information page on Separation & Divorce] | *[https://www.clicklaw.bc.ca/resource/4639 Legal Aid BC's Family Law website's information page on Separation & Divorce] | ||
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===Resources=== | ===Resources=== | ||
*[ | *[https://www.clicklaw.bc.ca/resource/1058 "Living Together or Living Apart"] from Legal Aid BC | ||
** See chapter 2 on making agreements | ** See chapter 2 on making agreements | ||
*[https://www.clicklaw.bc.ca/resource/2751 "Separation Agreements: Your Right to Fairness"] from Legal Aid BC and West Coast LEAF | *[https://www.clicklaw.bc.ca/resource/2751 "Separation Agreements: Your Right to Fairness"] from Legal Aid BC and West Coast LEAF | ||
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*[https://www.clicklaw.bc.ca/resource/4494 "How to Separate" online course] from the Justice Education Society of BC | *[https://www.clicklaw.bc.ca/resource/4494 "How to Separate" online course] from the Justice Education Society of BC | ||
*[https://www.clicklaw.bc.ca/resource/4760 "Ending Relationships" video] from John-Paul Boyd, QC | *[https://www.clicklaw.bc.ca/resource/4760 "Ending Relationships" video] from John-Paul Boyd, QC | ||
*[ | *[https://www.lawsociety.bc.ca/docs/practice/checklists/D-3.pdf "Practice Checklist Manual"] from the Law Society of BC | ||
** See "Separation Agreement Drafting" | ** See "Separation Agreement Drafting" | ||
{{REVIEWED | reviewer = [[ | {{REVIEWED | reviewer = [[Beatrice McCutcheon]], 22 November 2023}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||
