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Difference between revisions of "Changing Family Law Agreements"
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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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<blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(c) the degree to which the spouses relied on the terms of the agreement.</tt></blockquote></blockquote> | ||
In | In an often referred to case from the BC Supreme Court, [https://canlii.ca/t/fxsd1 ''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 that are "unjust or unreasonable." In [http://canlii.ca/t/g8mqv ''Remmem v. Remmem''], 2014 BCSC 1552, the BC Supreme Court 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 section 93. | ||
These three factors — passage of time, intention to achieve certainty through the agreement, and degree of reliance on the terms of the agreement — could themselves show that an agreement is ''significantly unfair'', but the court can also consider these factors in deciding whether or not a significantly unfair agreement should be set aside or left in place. More recently, the BC Court of Appeal in ''[https://canlii.ca/t/jd2rs Azanchi v. Mobrhan-Shafiee]'', 2021 BCCA 55, said "a court may determine that, despite significant unfairness, an agreement should not be set aside if, for example, the parties have relied heavily on its terms in making their lifestyle choices, or have deliberately risked having to live with an unfair agreement because they placed a high value on certainty." | |||
If you are asking the court to set aside the parts of an agreement about dividing property or dividing debt, you can make your argument under section 93(3), section 93(5), or both. | If you are asking the court to set aside the parts of an agreement about dividing property or dividing debt, you can make your argument under section 93(3), section 93(5), or both. | ||
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===Cancelling agreements about property under the ''Family Relations Act''=== | ===Cancelling agreements about property under the ''Family Relations Act''=== | ||
Agreements between ''married spouses'' about property that were made before March | Agreements between ''married spouses'' about property that were made before 18 March 2013, the date when the ''[[Family Law Act]]'' came into force, have to be changed under the ''[http://canlii.ca/t/840n Family Relations Act]''. The ''Family Relations Act'' was the law in British Columbia before the ''Family Law Act''. Section 252(2)(a) of the ''Family Law Act'' says that court proceedings to enforce, set aside, or replace an agreement about property division that was signed before the ''Family Law Act'' came into force must be started under the ''Family Relations Act''. | ||
If the ''Family Relations Act'' applies to an agreement about property, section 65 of that act says that an agreement that is in writing and witnessed by a third party can be set aside if it would be unfair considering six factors: | If the ''Family Relations Act'' applies to an agreement about property, section 65 of that act says that an agreement that is in writing and witnessed by a third party can be set aside if it would be unfair considering six factors: | ||
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Section 68 of the ''Family Relations Act'' talks about the variation of agreements that are not in writing or were not witnessed. | Section 68 of the ''Family Relations Act'' talks about the variation of agreements that are not in writing or were not witnessed. | ||
However, it's the ''Family Law Act'' that applies to agreements about property between ''unmarried spouses made'' that were signed before March | However, it's the ''Family Law Act'' that applies to agreements about property between ''unmarried spouses made'' that were signed before 18 March 2013. The Supreme Court of British Columbia has decided, in [http://canlii.ca/t/j0s71 ''B.L.S. v. D.J.S''], 2019 BCSC 846, that the new law applies to these agreements even though they were signed before the ''Family Law Act'' was law. | ||
Given the additional issues involved in changing agreements made before March | Given the additional issues involved in changing agreements made before 18 March 2013, it's really important that you get advice from a family law lawyer before you do anything. | ||
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{{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}} | ||