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Difference between revisions of "Family Law Agreements"
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Lawyers often write family law agreements in a standard format using standard terms, tailored, of course, to the specific needs and circumstances of the parties. Just because family law agreements are often written using standard terms and standard language doesn't mean that an agreement using different wording will be set aside because it expresses things in a different way. As long as it is clear what the intentions of the parties are and as long as the agreement is fair and continues to be fair, the courts will usually uphold the agreement. | Lawyers often write family law agreements in a standard format using standard terms, tailored, of course, to the specific needs and circumstances of the parties. Just because family law agreements are often written using standard terms and standard language doesn't mean that an agreement using different wording will be set aside because it expresses things in a different way. As long as it is clear what the intentions of the parties are and as long as the agreement is fair and continues to be fair, the courts will usually uphold the agreement. | ||
A British Columbia company called Self-Counsel Press publishes a variety of do-it-yourself agreement kits along with instructions for completing and executing them, or you might try 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 instructions 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 which might help, and your library may have a copy of the Self-Counsel Press materials available for loan. Guides to drafting family law agreements will also be available at | There are still other resources available for free which might help, and your library may have a copy of the Self-Counsel Press materials available for loan. Guides to drafting family law agreements will also be available at through a branch of [http://www.courthouselibrary.ca/about/libraries.aspx Courthouse Libraries BC]; one of the very best is the ''[http://abl.bccls.bc.ca/?hreciid=|library/marc/dynix-bccls|11767 Family Law Agreements Manual]'' published by the Continuing Legal Education Society of British Columbia. | ||
The following are the typical elements of a family agreement, using the example of John and Jane Doe, married spouses who are entering into a separation agreement. Note that the examples given are not complete and are provided only to illustrate a point; they should not be used to draft your own agreement! | The following are the typical elements of a family agreement, using the example of John and Jane Doe, married spouses who are entering into a separation agreement. Note that the examples given are not complete and are provided only to illustrate a point; they should not be used to draft your own agreement! | ||
====The | ====The introduction==== | ||
The introduction to an agreement, also known as the ''exordium'' (isn't that a great word?), is the portion of an agreement that identifies the parties to the agreement, provides a title for the agreement, and sets out the date on which the agreement is made. This section typically looks like this: | The introduction to an agreement, also known as the ''exordium'' (isn't that a great word?), is the portion of an agreement that identifies the parties to the agreement, provides a title for the agreement, and sets out the date on which the agreement is made. This section typically looks like this: | ||
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("John")</tt></blockquote></blockquote> | ("John")</tt></blockquote></blockquote> | ||
====The | ====The recitals==== | ||
These are paragraphs that describe the parties' circumstances when the agreement is made. 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 give the parties' incomes, among other things. | These are paragraphs that describe the parties' circumstances when the agreement is made. 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 give 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. | 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. | 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. | ||
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Essentially, every fact that is relevant to the agreement should be put into the recitals to the agreement. | Essentially, every fact that is relevant to the agreement should be put into the recitals to the agreement. | ||
====The | ====The operative clauses==== | ||
The operative clauses of an agreement are the nuts and bolts of the settlement. They are the essential terms of the agreement and describe what each party's rights and obligations are. In the case of a separation agreement, the operative clauses might look like this: | The operative clauses of an agreement are the nuts and bolts of the settlement. They are the essential terms of the agreement and describe what each party's rights and obligations are. In the case of a separation agreement, the operative clauses might look like this: | ||
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...and so forth. Other terms 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 terms 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 the couple are married, which laws will govern the interpretation of the agreement, and so on. | ...and so forth. Other terms 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 terms 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 the couple are married, which laws will govern the interpretation of the agreement, and so on. | ||
====The | ====The signatures==== | ||
This is the final section of a family law agreement where the parties will each 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 his or her name to the agreement. The witness usually provides some other information, typically his or her full name, address, and occupation. | This is the final section of a family law agreement where the parties will each 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 his or her name to the agreement. The witness usually provides some other information, typically his or her full name, address, and occupation. | ||
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The witnesses to the parties' signatures do not become parties to the agreement and the agreement cannot be enforced against them. The signature of the witness simply says that he or she saw the particular party sign the agreement, in case someone ever denies signing the agreement. | The witnesses to the parties' signatures do not become parties to the agreement and the agreement cannot be enforced against them. The signature of the witness simply says that he or she saw the particular party sign the agreement, in case someone ever denies signing the agreement. | ||
==Negotiating | ==Negotiating considerations== | ||
For many couples, negotiations begin and end over a cup of coffee at the local Tim Hortons. This is fine, providing that everyone is relatively friendly and the parties are approaching their negotiations from a relatively level footing. The court will respect the agreements that negotiations like these produce, on the basis that people are free to make their own bargains and to contract to whatever they like. | For many couples, negotiations begin and end over a cup of coffee at the local Tim Hortons. This is fine, providing that everyone is relatively friendly and the parties are approaching their negotiations from a relatively level footing. The court will respect the agreements that negotiations like these produce, on the basis that people are free to make their own bargains and to contract to whatever they like. | ||
===The | ===The views of the court=== | ||
Problems can arise when negotiations aren't completely fair. In a 2003 case from the Supreme Court of Canada, ''Miglin v. Miglin'', the court held that family law agreements should not be considered under exactly the same standards that are applied to ordinary commercial contracts because family law agreements are usually negotiated at "a time of intense personal and emotional turmoil, in which one of both of the parties may be particularly vulnerable." Some of these vulnerabilities were described in a 2000 case from Ontario, ''Leopold v. Leopold'': | Problems can arise when negotiations aren't completely fair. In a 2003 case from the Supreme Court of Canada, ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303, the court held that family law agreements should not be considered under exactly the same standards that are applied to ordinary commercial contracts because family law agreements are usually negotiated at "a time of intense personal and emotional turmoil, in which one of both of the parties may be particularly vulnerable." Some of these vulnerabilities were described in a 2000 case from Ontario, ''[http://canlii.ca/t/1w9mm Leopold v. Leopold]'', 2000 CanLII 22708 (ON SC): | ||
<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, ''Rick v. Brandsema'', 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. | ||
Potential unfairness, then, can come from: | Potential unfairness, then, can come from: | ||