Changing Family Law Agreements
Due to some important changes in family law, some of the current information in JP Boyd on Family Law is out of date (especially information about parenting after separation and moving away after separation under the Divorce Act). We are working on a new edition. Read more under:
After a family law agreement has been signed, one of three things can happen:
- The parties can follow the agreement and everything continues as it should.
- The circumstances of the parties or a child change and their agreement must also change.
- One of the parties refuses to follow the agreement and it 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.
You can find out how family law agreements are enforced in the Enforcing Family Law Agreements section of this chapter.
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.
- 1 Changing agreements by agreement
- 2 Intervention by the courts
- 2.1 Setting aside agreements under the law of contracts
- 2.2 Setting aside agreements under the Family Law Act
- 2.3 Setting aside agreements about property and debt under the Family Relations Act
- 3 Resources and links
Changing agreements by agreement
There are always two ways of doing something: the hard way or the easy way. In family law, the easy way usually involves discussion and negotiation. The hard way usually involves a court proceeding, and is generally a fair bit more expensive and time-consuming than the easy way.
Any family law agreement can be changed at any time, as long as the parties to the agreement agree to the change. If the parties can't agree on the change or on the terms of the change, the party who wants the change may have to go to court if the problem is important enough. Since the court doesn't have the power to vary an agreement, the best the court can do is to cancel the part of the agreement that has to change and then make an order in place of the part that was cancelled.
Under the changes to the Divorce Act that took effect on 1 March 2021, "custody" is now known as decision-making responsibility and "access" is now known as parenting time, for people who are or used to be married to each other, or as contact for other people. Decision-making responsibility under the Divorce Act means the same thing as parental responsibilities under the Family Law Act.
Older agreements that use the terms custody and access are still good and don't need to be updated to the new language. If you have an older agreement that says you have custody, you now have decision-making responsibility for your children. If you are or were married to your ex and have an agreement that says you have access, you now have parenting time.
Amending an agreement
A family law agreement can be changed by a later agreement. If the parties to an agreement both agree that the original agreement should be changed and agree on how it should be changed, the parties can sign a second agreement called an amendment agreement, an amending agreement, or an addendum agreement to the original agreement.
An agreement changing an agreement must refer to the original agreement and is usually titled something like "Amendment to the Separation Agreement made on 1 April 2010." Amending agreements are usually very short, as the idea is to change just one particular part of an agreement rather than to rewrite the entire original agreement. The amending agreement should specify which particular paragraph of the original agreement is being changed, and then set out the new text of that paragraph:
2. The parties agree that Paragraph 23 of the Agreement made on 1 April 2010 will be cancelled and be replaced with the following:
Sally will also have parenting time with the children beginning on Tuesdays at 4:00pm or the end of school to the following Wednesday at 9:00am or the start of school, whichever is earlier.
3. Sally's income is $45,000 per year as at the date on which this Amending Agreement is made. The parties agree that Sally's child support obligation, set out at Paragraph 28 of the Agreement made on 1 April 2010, will be $684 per month, commencing 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.
Amending an agreement through negotiation
A well-written agreement will usually provide a way for the parties to resolve disputes arising from the agreement. Sometimes this mechanism requires that the parties go to court; sometimes this mechanism prescribes some other means of dispute resolution like mediation or arbitration.
Mediation is, in general, the best option if simple negotiation doesn't get you anywhere. In mediation, the parties attempt to negotiate a resolution to their dispute with the help of a neutral third party, the mediator, who is skilled in family law issues and works with the parties to get them to a new agreement.
Mediation is not always appropriate, particularly where the problem is limited to one particular term of the agreement and it seems that neither party is willing to bend on the matter. In such cases, arbitration on that one issue should be considered. The job of an arbitrator is to listen to the evidence and the arguments and then make a decision, called an award, that resolves the dispute and is binding on the parties. It is always faster to arbitrate than to litigate, and when both parties have lawyers, it's usually cheaper to arbitrate as well.
Whatever method is chosen, it's almost always better for people to reach a resolution of the problem themselves without having to go to court. This way the power remains in the hands of the people whose lives are affected by the agreement and who must live with it on a daily basis, rather than in the hands of someone else, a judge, who doesn't know the people involved and may make a decision that no one is entirely happy with.
Intervention by the courts
If a party to an agreement becomes unhappy with an agreement, there are two ways to proceed. First, the party could ask the court to throw out the entire agreement because it is unfair, because the agreement is invalid, or because of some other fatal problem with the contract. Second, the party could apply under the Family Law Act to have the court set aside just part of the agreement.
In general, the court will be reluctant to meddle with a reasonable separation agreement. In fact, the Court of Appeal for British Columbia has said that separation agreements should be treated by the courts with "great deference." This is because a separation agreement is a private contract between two parties that is the product of an often lengthy process of negotiation, and the courts are usually unwilling to disturb an agreement without a very good reason for doing so. The courts will be similarly reluctant to change a final order that was the product of a separation agreement.
Setting aside agreements under the law of contracts
Just like a commercial contract, the validity of a family law agreement can be challenged for a number of reasons based on the common law of contracts:
- The agreement was not freely entered into; in other words, a party was under duress when the agreement was negotiated or executed.
- The agreement is unconscionable; in other words, the agreement is obviously and seriously unfair to a party.
- A party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by mistake.
- The agreement was signed without full disclosure having been made, or
- A party signed the agreement because misleading information had been provided.
Duress, coercion, unconscionability and mistake
The courts won't enforce an agreement — that is, they won't compel the parties to abide by an agreement — where one of the parties was forced or pressured to enter into the agreement. An agreement must be entered into freely and voluntarily.
Likewise, the courts won't enforce an agreement where one of the parties used a position of power to achieve an unfair agreement. This can include threats and manipulation, as well as signing an agreement in circumstances of extreme emotional stress, such as just before a wedding, following a hospitalization, or during an emotional breakdown.
Agreements that are hugely unfair can also be found to be unconscionable, as can agreements formed under a fundamental misunderstanding about the nature of the family finances or the extent of a party's assets.
Lack of independent legal advice
A spouse may be able to challenge the validity of an agreement where they did not receive independent legal advice before entering into the agreement. Independent legal advice helps to ensure that both parties are on a more or less equal footing, and to ensure that one party doesn't unintentionally enter into an unfair agreement.
There is, however, no requirement that independent legal advice be sought before an agreement is signed. In most situations, the absence of independent legal advice alone will not be enough to overturn an agreement by itself.
Fraud and the failure to make full disclosure
When people enter into an agreement, they do so on the assumption that certain material facts are true, that each is earning as much money as they say they are, that each has no more assets than they say they have, and so forth. These assumptions are the foundation on which the agreement is built. If one of the parties has failed to make full disclosure of these sorts of material facts, or if one party has lied about or misrepresented these facts, the courts may be willing to overturn an agreement.
Setting aside agreements under the Family Law Act
Under the provincial Family Law Act, the court cannot vary or amend a valid agreement. When the court is convinced that an agreement must change, the court will set aside the parts of the agreement that are causing the problem and make an order in place of the parts set aside. Section 214 of the act says this:
(1) If an order is made to set aside part of an agreement, the part is deemed to be severed from the remainder of the agreement.
(2) A court may incorporate into an order all or part of a written agreement respecting a family law dispute made by the parties to the proceeding and, unless the court orders otherwise,
(a) the order replaces that part of the agreement that is incorporated, and
(b) the remainder of the agreement remains effective.
(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,
(a) the order replaces the part of the agreement that provides differently for the same subject matter, and
(b) the remainder of the agreement remains effective.
The legal test that the court must apply to set aside part of an agreement changes, depending on the subject of the part of the agreement in question.
Under the changes to the Divorce Act, the court is required to include the parts of agreements about parenting after separation, called parenting plans, into orders about children. However, if the court decides that any part of a parenting plan is not in the best interests of a child, it can change the terms of the parenting plan in its order.
The Family Law Act does not provide a specific test to vary an agreement appointing a parent as the guardian of a child. Section 214(3) does, however, anticipate that an agreement and a later court order might "provide differently for the same subject matter", in which case the court order replaces the agreement for that particular subject.
Under section 37(1), when the court is making an order about guardianship, it must do so considering only the best interests of the child. The factors the court must think about to decide what is in the best interests of a child are listed at section 37(2) of the act and, when family violence is a factor, also at section 38.
Parental responsibilities, parenting time and contact
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 an issue, also the factors listed at section 38.
As in all matters concerning children, the court's only concern is the best interests of the child. The court will rarely interfere with an agreement that provides for child support in accordance with the federal Child Support Guidelines. The courts will also be reluctant to reduce a child support provision that is higher than what the Guidelines require, because it is logically in the best interests of the child to have the benefit of as much support as possible. The courts will be much more inclined to interfere with a provision of an agreement that calls for a lesser amount of support than what the Guidelines require.
Section 148(3) of the Family Law Act says this:
On application by a party, the court may set aside or replace with an order made under this Division all or part of an agreement respecting child support if the court would make a different order on consideration of the matters set out in section 150.
Section 150 is the section that says how child support is to be calculated, namely that it is to be calculated according to the Guidelines. As a result, the court will set aside the part of an agreement dealing with child support if:
- the payor's income has increased,
- the payor's income has decreased,
- one or more children are no longer living mostly with the parent receiving support,
- one or more children are now splitting their time almost equally between the homes of the payor and the recipient,
- one or more children are no longer entitled to receive support, or
- the agreement otherwise provides for an inadequate amount of child support.
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 common law of contracts, discussed above.
Even if there are no problems with the circumstances when the agreement was being negotiated and signed, the court can still set aside the agreement if it considers the agreement to be "significantly unfair" considering five factors:
(5) Despite subsection (3), the court may set aside or replace with an order made under this Division all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:
(a) the length of time that has passed since the agreement was made;
(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;
(c) the intention of the spouses, in making the agreement, to achieve certainty;
(d) the degree to which the spouses relied on the terms of the agreement;
(e) the degree to which the agreement meets the objectives set out in section 161.
Section 161 is the section that says why spousal support should be awarded.
Property and debt
Section 93 of the Family Law Act talks about when the parts of an agreement about dividing property and dividing debt should be set aside. Like 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 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) looks at three factors, not five:
(5) Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:
(a) the length of time that has passed since the agreement was made;
(b) the intention of the spouses, in making the agreement, to achieve certainty;
(c) the degree to which the spouses relied on the terms of the agreement.
In a 2013 case from the Supreme Court of British Columbia, 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 which are "unjust or unreasonable." In a 2014 case, Remmem v. Remmem, 2014 BCSC 1552, the Supreme Court of British Columbia 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 the legislation.
Setting aside agreements about property and debt under the Family Relations Act
Agreements between married spouses about property and debt that were made before March 18, 2013, which is when the Family Law Act came into force, have to be changed under the Family Relations Act, which was the law in effect before the Family Law Act. Section 252(2)(a) of the Family Law Act says that proceedings to enforce, set aside, or replace an agreement about property division that was made before the Family Law Act came into force must be started under the Family Relations Act.
If the Family Relations Act applies, then section 65 of that act says that an agreement that is in writing and witnessed by a third party or parties can be varied if it would be unfair with regard to the factors set out in that section. Section 68 of the Family Relations Act provides for the variation of agreements that are not in writing or were not witnessed.
For agreements between unmarried spouses made before March 18, 2013, the Supreme Court of British Columbia has found, in B.L.S. v. D.J.S, 2019 BCSC 846, that the Family Law Act applies to these agreements, subject to any time limitations under section 198 of the act.
Given the additional issues involved in changing agreements made before March 18, 2013, getting advice from a lawyer is highly recommended in these situations.
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, March 6, 2021.|
|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.|