How Do I Change a Family Law Agreement?
The most common family law agreements are:
- cohabitation agreements, used when a couple plan on living together but don't plan on marrying,
- marriage agreements, used when a couple plan to marry, and
- separation agreements, used when married spouses or unmarried spouses have separated.
All of these agreements can be changed once they've been executed, as long as the parties to the agreement agree that the agreement should be changed. If the parties don't agree that the agreement should be changed, then the party who is unhappy with the agreement can ask the court to set aside the entire agreement or just part of it.
What can be changed
Normally, people only want to change one or two parts of an agreement while keeping the rest of the agreement intact. If you want a brand new agreement altogether, be careful. If the other party won't agree to throw out the old agreement, they will be entitled to go to court to enforce the old agreement, whether you're still happy with that agreement or not. This is, after all, why people execute contracts in the first place: they expect them to be permanent and they expect that the courts will hold people to the agreements they have made.
If the parties don't agree and one party asks the court to change the agreement, then, if the court is convinced that the agreement must change, it can set aside the entire agreement under the law of contracts or set aside the part of the agreement that is causing the problems and make an order in place of the part set aside.
Making the new agreement
Since, in most cases, the original agreement is being kept, changes to that agreement are made in new agreements called "amending agreements", "addendum agreements," or some other language to that effect. The new agreement is a separate contract that says in what ways the original contract is being changed. The new agreement will:
- state, in the recitals, the name and the date of the agreement that is being changed,
- briefly, also in the recitals, explain why the change is necessary, and
- state, for each change, the paragraph affected in the old agreement and how that paragraph is to be changed.
You might handle the first and second points by saying something like this: "this agreement amends the Separation Agreement executed by the parties on 1 April 2010," and "following the execution of the Separation Agreement, the schedule of the parties' parenting time has become unworkable as a result of certain changes in their hours of employment." The individual changes might be handled like this:
4. Paragraph 12 of the Separation Agreement will be cancelled and is replaced with the following:
"Sally will return the children to Harry's care at 7:00pm or at the end of the evening shift, whichever is earlier. Sally will give Harry 24 hours notice in the event she is scheduled to work the evening shift on the days she is to return the children to Harry's care."
5. Paragraph 36 of the Separation Agreement will be replaced with the following:
"Sally will pay child support to Harry in the amount of $425 per month for as long as the children remain children of the marriage as defined by the Divorce Act."
The key points here are that you must specifically identify the parts that are to be changed and how they are being changed, and the new language must be as clear and unambiguous as the language of the original agreement.
Executing the new agreement
The new agreement must be executed in front of a witness or witnesses in the same manner as the original agreement was executed. The witness or witnesses to the new agreement do not need to be the same person or people who witnessed the original agreement.
It is also a good idea (but not required) that each of the parties and the witness or witnesses initial each page of the new agreement other than the page with the parties' signatures.
For more information
You can find more information about changing a family law agreement in the chapter Family Law Agreements.
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Beatrice McCutcheon, June 9, 2019.|
|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.|
Normally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."
A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a court proceeding. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the Divorce Act. See "judge" and "jurisdiction."
In law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant."
In contract law, to complete or accomplish; to complete the legal formalities necessary to give a document effect. One "executes" a separation agreement, for example, by signing it in the presence of a witness.
A mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration."
A term under the Family Law Act which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian."
Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.
A person with direct, personal knowledge of facts and events; a person giving oral evidence in court on oath or affirmation as to the truth of the evidence given. See "affirm," "evidence," "oath" and "opinion evidence."
An agreement between two or more persons about family law issues that have arisen or made arise, dealing with their respective rights and obligations to one another, which the parties expect will be binding on them and be enforceable in court. Typical family law agreements include marriage agreements, cohabitation agreements and separation agreements.