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Difference between revisions of "Changing Family Law Agreements"
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====Guardianship==== | ====Guardianship==== | ||
The ''Family Law Act'' does not provide a specific test to vary an agreement appointing a parent as the guardian of a child. However, under | The ''Family Law Act'' does not provide a specific test to vary an agreement appointing a parent as the guardian of a child. However, under section 214(3), the court can make an order on different terms than an agreement. | ||
Under | 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==== | ====Parental responsibilities, parenting time and contact==== | ||
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Section 58(4) says almost exactly the same about agreements for contact. | 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 | 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. | ||
====Child support==== | ====Child support==== | ||
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====Spousal support==== | ====Spousal 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 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: | 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: | ||
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<blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(d) other circumstances that would under the common law cause all or part of a contract to be voidable.</tt></blockquote></blockquote> | ||
That last part, at | 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: | 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: | ||
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====Property and debt==== | ====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 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: | ||
<blockquote><tt>(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:</tt></blockquote> | <blockquote><tt>(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:</tt></blockquote> | ||
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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. | 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 [http://canlii.ca/t/j0s71 ''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 | For agreements between unmarried spouses made before March 18, 2013, the Supreme Court of British Columbia has found, in [http://canlii.ca/t/j0s71 ''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. | Given the additional issues involved in changing agreements made before March 18, 2013, getting advice from a lawyer is highly recommended in these situations. | ||