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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 | ||
|ChapterEditors = [[Beatrice McCutcheon]] | |ChapterEditors = [[Beatrice McCutcheon]] and [[Gagan Mann]] | ||
}} | }} | ||
{{Clicklawbadge | {{Clicklawbadge | ||
| resourcetype = more resources dealing with | | resourcetype = more resources dealing with | ||
|link = [https://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements] | |link = [https://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements] | ||
}}A family law agreement — like a cohabitation agreement, a marriage agreement or a separation agreement — is a contract, just like the contract you might have with an employer or a landlord: each party promises to do something in exchange for something the other party promises to do, and both parties expect that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to settle the issues that come up when a relationship ends, although cohabitation agreements and marriage agreements are sometimes also used to settle how a relationship will be managed. | }}A family law agreement — like a cohabitation agreement, a marriage agreement, or a separation agreement — is a contract, just like the contract you might have with an employer or a landlord: each party promises to do something in exchange for something the other party promises to do, and both parties expect that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to settle the issues that come up when a relationship ends, although cohabitation agreements and marriage agreements are sometimes also used to settle how a relationship will be managed. | ||
This chapter begins with an overview of family law agreements, and discusses the role they play during relationships and when relationships end. It also reviews the typical elements of a family law agreement and discusses some of the things you might wish to keep in mind when negotiating and drafting an agreement yourself. | This chapter begins with an overview of family law agreements, and discusses the role they play during relationships and when relationships end. It also reviews the typical elements of a family law agreement and discusses some of the things you might wish to keep in mind when negotiating and drafting an agreement yourself. | ||
The other sections of this chapter look at [[Cohabitation Agreements|cohabitation agreements]], [[Marriage Agreements|marriage agreements]] and [[Separation Agreements|separation agreements]] in more detail, and provide additional information about [[Enforcing Family Law Agreements|enforcing an agreement]] and [[Changing Family Law Agreements|changing an agreement]]. | The other sections of this chapter look at [[Cohabitation Agreements|cohabitation agreements]], [[Marriage Agreements|marriage agreements]], and [[Separation Agreements|separation agreements]] in more detail, and provide additional information about [[Enforcing Family Law Agreements|enforcing an agreement]] and [[Changing Family Law Agreements|changing an agreement]]. | ||
==Introduction== | ==Introduction== | ||
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The usual point of agreements like these is to say what will happen if the relationship breaks down, although they can also talk about how things will be handled during the relationship or if one person dies during the relationship. The weird thing about marriage agreements and cohabitation agreements is that although they mostly talk about what will happen when a relationship ends, that may not happen for five years or 20 years, or it may never happen at all. As a result, it can be difficult to make plans based on what the family's circumstances might be like at some unknown point in the future when the relationship ends. | The usual point of agreements like these is to say what will happen if the relationship breaks down, although they can also talk about how things will be handled during the relationship or if one person dies during the relationship. The weird thing about marriage agreements and cohabitation agreements is that although they mostly talk about what will happen when a relationship ends, that may not happen for five years or 20 years, or it may never happen at all. As a result, it can be difficult to make plans based on what the family's circumstances might be like at some unknown point in the future when the relationship ends. | ||
Married spouses, unmarried spouses and other unmarried couples who enter into an agreement after their relationship has broken down are entering into a ''separation agreement''. A separation agreement is a contract that describes how some or all of the legal issues arising from the end of the relationship have been resolved. | Married spouses, unmarried spouses, and other unmarried couples who enter into an agreement after their relationship has broken down are entering into a ''separation agreement''. A separation agreement is a contract that describes how some or all of the legal issues arising from the end of the relationship have been resolved. | ||
All of these different kinds of agreement are legal contracts that describe the parties' rights and obligations towards one another. They can deal with everything from who gets to keep the Kenny G boxed CD set, to where the children will live, to how the parties will deal with their mutual friends, to who gets to keep the Ford Pinto. While these agreements are usually all-inclusive, they don't have to be; some issues can be left aside for the courts to deal with. A couple might sign a ''property agreement'' dealing with just property issues, or a ''parenting agreement'' dealing with just the care of the children when their relationship has ended. | All of these different kinds of agreement are legal contracts that describe the parties' rights and obligations towards one another. They can deal with everything from who gets to keep the Kenny G boxed CD set, to where the children will live, to how the parties will deal with their mutual friends, to who gets to keep the Ford Pinto. While these agreements are usually all-inclusive, they don't have to be; some issues can be left aside for the courts to deal with. A couple might sign a ''property agreement'' dealing with just property issues, or a ''parenting agreement'' dealing with just the care of the children when their relationship has ended. | ||
Despite the intentions of the couple when they signed an agreement, the terms of their agreement may still wind up being reviewed by the court, and possibly changed, if one of the parties later has a problem with the agreement. While the court will pay a great deal of respect to any written agreement, if an agreement was unfairly negotiated, is significantly unfair or becomes significantly unfair the court will generally be willing to look into things and perhaps set aside the agreement and make an order on different terms. | Despite the intentions of the couple when they signed an agreement, the terms of their agreement may still wind up being reviewed by the court, and possibly changed, if one of the parties later has a problem with the agreement. While the court will pay a great deal of respect to any written agreement, if an agreement was unfairly negotiated, is significantly unfair, or becomes significantly unfair, the court will generally be willing to look into things and perhaps set aside the agreement and make an order on different terms. | ||
The ''[[Family Law Act]]'' encourages people to make agreements resolving their disputes rather than going to court. Section 6 of the act says this: | The ''[[Family Law Act]]'' encourages people to make agreements resolving their disputes rather than going to court. Section 6 of the act says this: | ||
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<blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote> | <blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote> | ||
Under | Under section 214 of the act, the court may: | ||
#set aside part of an agreement, without changing the rest of the agreement, | #set aside part of an agreement, without changing the rest of the agreement, | ||
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===Marriage and cohabitation agreements=== | ===Marriage and cohabitation agreements=== | ||
Marriage agreements and cohabitation agreements usually talk about what will happen if the parties' relationship breaks down, although they can sometimes talk about how things will be handled during the relationship. These sorts of agreements are normally made | Marriage agreements and cohabitation agreements usually talk about what will happen if the parties' relationship breaks down, although they can sometimes talk about how things will be handled during the relationship. These sorts of agreements are normally made before the parties marry or begin to live together, but can be made at any time during the parties' relationship. | ||
It is important to know that you do not have to enter into a marriage or cohabitation agreement just because your partner wants you to, or just because you're about to marry or start living with someone. While your partner may want you to sign an agreement, you are under no legal obligation to do so. With or without a family law agreement, remedies are almost always available under the common law, the ''[[Divorce Act]]'', or the ''[[Family Law Act]]'' if problems crop up later on. | It is important to know that you do not have to enter into a marriage or cohabitation agreement just because your partner wants you to, or just because you're about to marry or start living with someone. While your partner may want you to sign an agreement, you are under no legal obligation to do so. With or without a family law agreement, remedies are almost always available under the common law, the ''[[Divorce Act]]'', or the ''[[Family Law Act]]'' if problems crop up later on. | ||
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*How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared proportionately to the parties' incomes? | *How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared proportionately to the parties' incomes? | ||
*How will unexpected expenses be paid for? Will both parties pay for household repairs? | *How will unexpected expenses be paid for? Will both parties pay for household repairs? | ||
*How will savings, RESPs, RRSPs and retirement funds be managed? Will each party be required to contribute a fixed monthly amount? | *How will savings, RESPs, RRSPs, and retirement funds be managed? Will each party be required to contribute a fixed monthly amount? | ||
*How will each party's income during the relationship be handled? What will happen if someone gets an unexpected windfall, like a lottery win or an inheritance? | *How will each party's income during the relationship be handled? What will happen if someone gets an unexpected windfall, like a lottery win or an inheritance? | ||
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===Separation agreements=== | ===Separation agreements=== | ||
Separation agreements are entered into after a relationship has broken down. There is no need for the parties to have moved out or gotten a divorce when the agreement is made; in fact, when a couple is married it's | Separation agreements are entered into after a relationship has broken down. There is no need for the parties to have moved out or gotten a divorce when the agreement is made; in fact, when a couple is married it's best to deal with the separation agreement before you apply for a divorce, just in case you can't reach an agreement. | ||
Separation agreements are always the product of negotiations between the parties and, hopefully, their lawyers. The goal of a separation agreement is to deal with all or some of the issues related to the separation in a way that both parties are as happy with as possible. Separation agreements usually deal with the following issues: | Separation agreements are always the product of negotiations between the parties and, hopefully, their lawyers. The goal of a separation agreement is to deal with all or some of the issues related to the separation in a way that both parties are as happy with as possible. Separation agreements usually deal with the following issues: | ||
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Separation agreements can cover everything that is a problem for a couple, even things that the court would not ordinarily deal with or be able to deal with. | Separation agreements can cover everything that is a problem for a couple, even things that the court would not ordinarily deal with or be able to deal with. | ||
Separation agreements are binding from the moment they are signed by both parties, unless the agreement says something different. They operate from the time they are made and, where children, child support, or spousal support are issues, they often continue to operate indefinitely into the future. Theoretically, a separation agreement will be binding on the parties until they die. In practice, however, most people stop relying on the agreement once the children have grown up, left home and become independent, even though their agreement continues to be legally binding on them. | Separation agreements are binding from the moment they are signed by both parties, unless the agreement says something different. They operate from the time they are made and, where children, child support, or spousal support are issues, they often continue to operate indefinitely into the future. Theoretically, a separation agreement will be binding on the parties until they die. In practice, however, most people stop relying on the agreement once the children have grown up, left home, and become independent, even though their agreement continues to be legally binding on them. | ||
==The elements of a family law agreement== | ==The elements of a family law agreement== | ||
The point of a family law agreement is to make a legal contract that both parties intend to be bound by and that the court can and will enforce if a party doesn't live up to their obligations. In order to be legally binding and enforceable, agreements must be negotiated, drafted and signed in a certain way and include certain terms. | The point of a family law agreement is to make a legal contract that both parties intend to be bound by and that the court can and will enforce if a party doesn't live up to their obligations. In order to be legally binding and enforceable, agreements must be negotiated, drafted, and signed in a certain way and include certain terms. | ||
===Negotiating the terms of an agreement=== | ===Negotiating the terms of an agreement=== | ||
Family law agreements are about really important things like where the children will live, who will pay support to whom and how the parties will divide their property. As a result, the terms of the agreement are almost always the result of lots of talking and negotiating. It is critical that: | Family law agreements are about really important things like where the children will live, who will pay support to whom, and how the parties will divide their property. As a result, the terms of the agreement are almost always the result of lots of talking and negotiating. It is critical that: | ||
*each person has all of the information that is necessary | *each person has all of the information that is necessary to figure out what's a good deal and what's a bad deal, | ||
*each person understands their legal rights and obligations | *each person understands their legal rights and obligations to know what's a good deal and what's a bad deal, | ||
*each person is able to express their views and contribute to negotiating the agreement, and | *each person is able to express their views and contribute to negotiating the agreement, and | ||
*there is no pressure to reach an agreement on either party, beyond the importance of reaching a reasonable agreement and saving money on legal fees and court <span class="noglossary">costs</span>. | *there is no pressure to reach an agreement on either party, beyond the importance of reaching a reasonable agreement and saving money on legal fees and court <span class="noglossary">costs</span>. | ||
Properly negotiating and entering into a family law agreement isn't simply a matter of putting the important parts on paper and signing the document. There must be fairness in the way an agreement is negotiated, fairness in the way it is drafted, and fairness in the way it is signed. The people who are negotiating the agreement must be able to understand the agreement, be capable of agreeing to it, and agree to it voluntarily. This is what | Properly negotiating and entering into a family law agreement isn't simply a matter of putting the important parts on paper and signing the document. There must be fairness in the way an agreement is negotiated, fairness in the way it is drafted, and fairness in the way it is signed. The people who are negotiating the agreement must be able to understand the agreement, be capable of agreeing to it, and agree to it voluntarily. This is what section 93(3) of the ''[[Family Law Act]]'' says about agreements for the division of property and debt: | ||
<blockquote><tt>(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement ... only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:</tt></blockquote> | <blockquote><tt>(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement ... only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:</tt></blockquote> | ||
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*you have to make full disclosure of your income, your expenses, your assets and your debts, and any other information that is important to the agreement, | *you have to make full disclosure of your income, your expenses, your assets and your debts, and any other information that is important to the agreement, | ||
*you can't exploit the other party's weaknesses to get a good deal for yourself, | *you can't exploit the other party's weaknesses to get a good deal for yourself, | ||
*you have to make sure that the other party understands exactly what the agreement means and how it will affect their life, both now and in the future, and | *you have to make sure that the other party understands exactly what the agreement means and how it will affect their life, both now and in the future, and | ||
*you can't force or pressure someone to sign the agreement, you can't cheat someone into signing the agreement, and the agreement must be reasonable. | *you can't force or pressure someone to sign the agreement, you can't cheat someone into signing the agreement, and the agreement must be reasonable. | ||
Although | Although section 93 is about property, section 164(3) says the same thing about agreements for spousal support, and I think that this is a pretty reasonable standard to set for all other family law agreements. If you don't want the court to throw out your agreement, you've got to take the time to do it right, and you've got to be fair and not take advantage of the other party. | ||
The legal formalities common to all family law agreements are these: | The legal formalities common to all family law agreements are these: | ||
*The parties to the agreement must provide full financial disclosure to each other and must be completely honest in describing their circumstances. | *The parties to the agreement must provide full financial disclosure to each other and must be completely honest in describing their circumstances. | ||
* | *In most cases, the agreement must be in writing. While oral agreements have been upheld by the courts, it can be very difficult to establish the terms of the agreement, and oral agreements cannot be enforced until a court has determined what the terms of the agreement are. | ||
*The parties can't be under any sort of legal disability such as insanity. | *The parties can't be under any sort of legal disability such as insanity. | ||
*The parties must both sign the agreement of their own free will, without unfair pressure by the other party. | *The parties must both sign the agreement of their own free will, without unfair pressure by the other party. | ||
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*what rights and obligations the agreement gives to each party, | *what rights and obligations the agreement gives to each party, | ||
*how the agreement does or doesn't limit the other legal remedies that might be available, | *how the agreement does or doesn't limit the other legal remedies that might be available, | ||
*how the agreement may affect each person over the short- and long-term, and | *how the agreement may affect each person over the short- and long-term, and | ||
*the options and remedies that would have been available if everyone had decided to go to court instead of settling things with an agreement. | *the options and remedies that would have been available if everyone had decided to go to court instead of settling things with an agreement. | ||
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A British Columbia company called Self-Counsel Press publishes a variety of do-it-yourself agreement kits along with <span class="noglossary">instructions</span> for completing and executing them, or you might try [http://www.lawdepot.com LawDepot.com], an American company which says that it has family law agreement kits suitable for British Columbia. | A British Columbia company called Self-Counsel Press publishes a variety of do-it-yourself agreement kits along with <span class="noglossary">instructions</span> for completing and executing them, or you might try [http://www.lawdepot.com LawDepot.com], an American company which says that it has family law agreement kits suitable for British Columbia. | ||
There are still other resources available for free that might help, and your library might have a copy of the Self-Counsel Press materials available for loan. Guides to drafting family law agreements are also available at a branch of [http://www.courthouselibrary.ca/about/libraries.aspx Courthouse Libraries BC]; one of the very best is the ''[https:// | There are still other resources available for free that might help, and your library might have a copy of the Self-Counsel Press materials available for loan. Guides to drafting family law agreements are also available at a branch of [http://www.courthouselibrary.ca/about/libraries.aspx Courthouse Libraries BC]; one of the very best is the ''[https://www.courthouselibrary.ca/catalogue-item?cid=7280 Family Law Agreements: Annotated Precedents]'' published by the Continuing Legal Education Society of British Columbia. | ||
What follows are examples of the typical elements of a family agreement, using the example of John Doe and Jane Doe, a married couple who are entering into a separation agreement. These examples are not complete and are provided only to illustrate a point; they should not be used to draft your own agreement! | What follows are examples of the typical elements of a family agreement, using the example of John Doe and Jane Doe, a married couple who are entering into a separation agreement. These examples are not complete and are provided only to illustrate a point; they should not be used to draft your own agreement! | ||
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The recitals describe the parties' circumstances when the agreement is made in a summary sort of way. They include the basic facts of their relationship, give the names and birth dates of any children, describe the property and debts that the agreement deals with, and describe the parties' incomes, among other things. | The recitals describe the parties' circumstances when the agreement is made in a summary sort of way. They include the basic facts of their relationship, give the names and birth dates of any children, describe the property and debts that the agreement deals with, and describe the parties' incomes, among other things. | ||
The recitals are the foundation on which the agreement is built. They should be sufficient to tell a complete stranger why the parties entered not just into any agreement but this particular agreement. It is important that the recitals be as complete as possible because if anyone tries to challenge the agreement in the future, the recitals will set out the facts that were important to the parties at the time the agreement was made. | The recitals are the foundation on which the agreement is built. They should be sufficient to tell a complete stranger why the parties entered not just into any agreement, but this particular agreement. It is important that the recitals be as complete as possible because if anyone tries to challenge the agreement in the future, the recitals will set out the facts that were important to the parties at the time the agreement was made. | ||
In the case of a separation agreement, the recitals often look something like this: | In the case of a separation agreement, the recitals often look something like this: | ||
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<blockquote><tt>F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had parenting time with the Children every other weekend from Friday after school until Sunday at 7:00pm.</tt></blockquote> | <blockquote><tt>F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had parenting time with the Children every other weekend from Friday after school until Sunday at 7:00pm.</tt></blockquote> | ||
The rest of the recitals will continue in the same way. Other recitals might describe the make, model and value of each party's car, the address and value of the family home, the | The rest of the recitals will continue in the same way. Other recitals might describe the make, model, and value of each party's car, the address and value of the family home, the credit cards owned by the parties and the amounts owing on them, and so on. Essentially, every fact that is relevant to the agreement should be put into the recitals to the agreement. | ||
By the way, the parts where you see a capitalized word in brackets, like <tt>(the "Date of Separation")</tt>, are called ''defined terms''. These are very helpful because you can use a defined term to refer to the same thing throughout an agreement. Instead of saying <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia</tt> every time you need to talk about that property, you could say <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia (the "Family Home")</tt> once, and whenever you need to mention the property after that you can just say <tt>the Family Home</tt>. | By the way, the parts where you see a capitalized word in brackets, like <tt>(the "Date of Separation")</tt>, are called ''defined terms''. These are very helpful because you can use a defined term to refer to the same thing throughout an agreement. Instead of saying <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia</tt> every time you need to talk about that property, you could say <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia (the "Family Home")</tt> once, and whenever you need to mention the property after that you can just say <tt>the Family Home</tt>. | ||
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<blockquote><tt>JANE AND JOHN AGREE THAT:</tt></blockquote> | <blockquote><tt>JANE AND JOHN AGREE THAT:</tt></blockquote> | ||
<blockquote><tt>1. Jane and John will live separate from each other.</tt></blockquote> | <blockquote><tt>1. Jane and John will live separate from each other.</tt></blockquote> | ||
<blockquote><tt>2. Neither party will molest, annoy or harass the other or his or her friends, relatives and associates.</tt></blockquote> | <blockquote><tt>2. Neither party will molest, annoy, or harass the other or his or her friends, relatives, and associates.</tt></blockquote> | ||
<blockquote><tt>3. Except as is specifically provided in this Agreement, Jane and John will each keep all property presently in their possession and control as their own, free and clear of any and all claim by the other.</tt></blockquote> | <blockquote><tt>3. Except as is specifically provided in this Agreement, Jane and John will each keep all property presently in their possession and control as their own, free and clear of any and all claim by the other.</tt></blockquote> | ||
<blockquote><tt>THE CHILDREN</tt></blockquote> | <blockquote><tt>THE CHILDREN</tt></blockquote> | ||
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<blockquote><tt>CHILD SUPPORT</tt></blockquote> | <blockquote><tt>CHILD SUPPORT</tt></blockquote> | ||
<blockquote><tt>8. Jane will pay child support to John in the amount of $525 on the first day of each and every month, continuing for so long as the Children remain "children" as defined by the ''Family Law Act''.</tt></blockquote> | <blockquote><tt>8. Jane will pay child support to John in the amount of $525 on the first day of each and every month, continuing for so long as the Children remain "children" as defined by the ''Family Law Act''.</tt></blockquote> | ||
The rest of the operative clauses will continue in the same way. Other paragraphs might deal with specific property such as a car or the family home, the payment of debts, and the sharing of the children's expenses. The operative | The rest of the operative clauses will continue in the same way. Other paragraphs might deal with specific property such as a car or the family home, the payment of debts, and the sharing of the children's expenses. The operative clauses might also say who will pay what bills, whether and for how long spousal support will be paid, who will pay for the divorce (if there the people are married), which laws (e.g. ''[[Divorce Act]]'' or ''[[Family Law Act]]'') will govern the interpretation of the agreement, and so on. | ||
====The signatures==== | ====The signatures==== | ||
The last part of a family law agreement is where each of the parties will sign their names in the presence of a witness. The parties can sign the agreement at the same time or separately, at different times and in different locations. Either way, each party's signature must be witnessed, and the witness, after seeing the party sign the agreement, must sign their name to the agreement. The witness usually provides some other information, typically their full name, address, and occupation. | The last part of a family law agreement is where each of the parties will sign their names in the presence of a witness. The parties can sign the agreement at the same time or separately, at different times, and in different locations. Either way, each party's signature must be witnessed, and the witness, after seeing the party sign the agreement, must sign their own name as a witness to the agreement. The witness usually provides some other information, typically their full name, address, and occupation. | ||
<blockquote><tt>SIGNED by Jane )<br> | <blockquote><tt>SIGNED by Jane )<br> | ||
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It is also a good idea for each of the parties and the witnesses to initial each page of the agreement, other than the page with the parties' signatures. | It is also a good idea for each of the parties and the witnesses to initial each page of the agreement, other than the page with the parties' signatures. | ||
For a quick summary of how to execute a family law agreement, see the ''How Do I?'' part of this resource for [[How Do I Execute a Family Law Agreement?]] Look under ''Family Law Agreements''. | The formatting of the final agreement document should be looked at to make sure that the last page with all of the signatures also includes at least one or two of the operative clauses at the top. You don't want the signatures alone on a page. For example, if your separation agreement has 13 pages containing 30 operative clauses, page 13 should have operative clause 30 directly above the signatures. | ||
For a quick summary of how to execute a family law agreement, see the ''How Do I?'' part of this resource for [[How Do I Execute a Family Law Agreement?]]. Look under ''Family Law Agreements''. | |||
==Negotiating considerations== | ==Negotiating considerations== | ||
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<blockquote>"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."</blockquote> | <blockquote>"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."</blockquote> | ||
In a 2009 case, ''[http://canlii.ca/t/22hw5 Rick v. Brandsema]'',[2009] 1 SCR 295 the Supreme Court of Canada added another factor to this list, incomplete or misleading financial disclosure. | In a 2009 case, ''[http://canlii.ca/t/22hw5 Rick v. Brandsema]'', [2009] 1 SCR 295, the Supreme Court of Canada added another factor to this list, incomplete or misleading financial disclosure. In this case, the court noted that parties can only give genuine and informed consent to an agreement if they have the information they need to decide if the agreement is acceptable. | ||
Potential unfairness, then, can come from: | Potential unfairness, then, can come from: | ||
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Where unfairness is found, the court will be more likely to set aside an agreement or to make an order on terms different than those set out in an agreement. As a result, people negotiating family law agreements must take special care to ensure that everyone is on a level playing field and are negotiating from positions of relative equality. Here are some things that can help: | Where unfairness is found, the court will be more likely to set aside an agreement or to make an order on terms different than those set out in an agreement. As a result, people negotiating family law agreements must take special care to ensure that everyone is on a level playing field and are negotiating from positions of relative equality. Here are some things that can help: | ||
*'''Independent legal advice:''' Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the lawyers who provided the independent legal advice witness the parties' signatures on the agreement | *'''Independent legal advice:''' Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the lawyers who provided the independent legal advice witness the parties' signatures on the agreement. Have the lawyers sign 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 their right mind, | *'''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 their right mind, respectfully stop the negotiation 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 <span class="noglossary">account</span> balances, outstanding debts, property values, values of shares and options, art and jewelry appraisals, and so on. | *'''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 <span class="noglossary">account</span> balances, outstanding debts, property values, values of shares and options, art and jewelry appraisals, and so on. | ||
*'''Never lie:''' Intentionally misleading someone about the value of something, the amount of a debt, past income and future income expectations, or any other relevant fact will always undermine the strength of an agreement. Be scrupulously honest and transparent at all times. | *'''Never lie:''' Intentionally misleading someone about the value of something, the amount of a debt, past income and future income expectations, or any other relevant fact will always undermine the strength of an agreement. Be scrupulously honest and transparent at all times. | ||
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===The tests under the ''Family Law Act''=== | ===The tests under the ''Family Law Act''=== | ||
Unfairness is a key element of the tests under the ''[[Family Law Act]]'' to set aside the parts of agreements about the division of property and debt and about spousal support, as we saw under | Unfairness is a key element of the tests under the ''[[Family Law Act]]'' to set aside the parts of agreements about the division of property and debt and about spousal support, as we saw under section 93(3), reproduced above. | ||
Under | Under section 44(4) of the act, the court can set aside the parts of agreements about parenting arrangements if the parenting arrangements are not in the best interests of the child: | ||
<blockquote><tt>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.</tt></blockquote> | <blockquote><tt>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.</tt></blockquote> | ||
The same test is used to set aside the parts of agreements about contact. Under | The same test is used to set aside the parts of agreements about contact. | ||
Under section 148(3), the court can set aside the parts of agreements about child support if it would make a different order: | |||
<blockquote><tt>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.</tt></blockquote> | <blockquote><tt>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.</tt></blockquote> | ||
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*income tax consequences, | *income tax consequences, | ||
*the transfer of property, | *the transfer of property, | ||
*dividing property located outside of British Columbia, or | *dividing property located outside of British Columbia, or | ||
*liabilities to third parties and creditors. | *liabilities to third parties and creditors. | ||
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===Links=== | ===Links=== | ||
* [http://www. | * [http://www.clicklaw.bc.ca/resource/4653 Legal Services Society's Family Law website's information page "Legal forms & documents"] | ||
** Under the section "Agreements" see "Making an agreement after you separate", and "Who can help you reach an agreement?" | |||
* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's | *[http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ''Living Together or Living Apart''], chapter 2 on making agreements | ||
*[http://www.clicklaw.bc.ca/resource/1259 | *[http://www.clicklaw.bc.ca/resource/1259 Dial-A-Law Script "Marriage Agreements and Cohabitation Agreements"] | ||
*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: | *[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF's booklet ''Separation Agreements: Your Right to Fairness''] | ||
{{REVIEWED | reviewer = [[ | {{REVIEWED | reviewer = [[Gagan Mann]], June 3, 2019}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||