Difference between revisions of "Changing Family Law Agreements"

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Changing Family Law Agreements (view source)

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====Parental responsibilities, parenting time and contact====
====Parental responsibilities, parenting time and contact====


Under [http://www.leg.bc.ca/39th4th/3rd_read/gov16-3.htm#section44 s. 44(4)] of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:
Under s. 44(4) of the ''Family Law Act'' says this about agreements for parental responsibilities and parenting time:


<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>


Section [http://www.leg.bc.ca/39th4th/3rd_read/gov16-3.htm#section58 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 [http://www.leg.bc.ca/39th4th/3rd_read/gov16-3.htm#section37 s. 37(2)] of the act, and, when family violence is an issue, also the factors listed at [http://www.leg.bc.ca/39th4th/3rd_read/gov16-3.htm#section38 s. 38].
The factors the court must think about to decide what is in the best interests of a child are listed at s. 37(2) of the act, and, when family violence is an issue, also the factors listed at s. 38.


====Child support====
====Child support====
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As in all matters concerning children, the courts' only concern is the best interests of the child. The courts will rarely interfere with an agreement that provides for child support in accordance with the federal [[Child Support Guidelines]]. The courts will also be reluctant to reduce a child support provision which is higher than what the Guidelines require, because it is logically in the best interests of the child to have the benefit of as much support as possible. The courts will much more inclined to interfere with a provision of an agreement that calls for a lesser amount of support than what the Guidelines require.
As in all matters concerning children, the courts' only concern is the best interests of the child. The courts will rarely interfere with an agreement that provides for child support in accordance with the federal [[Child Support Guidelines]]. The courts will also be reluctant to reduce a child support provision which is higher than what the Guidelines require, because it is logically in the best interests of the child to have the benefit of as much support as possible. The courts will much more inclined to interfere with a provision of an agreement that calls for a lesser amount of support than what the Guidelines require.


[http://www.leg.bc.ca/39th4th/3rd_read/gov16-3.htm#section148 Section 148(3)] of the ''Family Law Act'' says this:
Section 148(3) of the ''Family Law Act'' says this:


<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>


[http://www.leg.bc.ca/39th4th/3rd_read/gov16-3.htm#section150 Section 150] is the section that says how child support is to be calculated, namely that it is to be calculated according to the Guidelines. As a result, the court will set aside the part of an agreement dealing with child support if:
Section 150 is the section that says how child support is to be calculated, namely that it is to be calculated according to the Guidelines. As a result, the court will set aside the part of an agreement dealing with child support if:


#the payor's income has increased,
#the payor's income has increased,
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====Spousal Support====
====Spousal Support====


[http://www.leg.bc.ca/39th4th/3rd_read/gov16-3.htm#section164 Section 164] of the ''Family Law Act'' talks about when the parts of an agreement about spousal support should be set aside. Under [http://www.leg.bc.ca/39th4th/3rd_read/gov16-3.htm#section163 s. 163(2)], an agreement about spousal support includes an agreement that spousal support ''won't'' be paid as well as an agreement that spousal support ''will'' be paid.  
Section 164 of the ''Family Law Act'' talks about when the parts of an agreement about spousal support should be set aside. Under s. 163(2), an agreement about spousal support includes an agreement that spousal support ''won't'' be paid as well as an agreement that spousal support ''will'' be paid.  


[[http://www.leg.bc.ca/39th4th/3rd_read/gov16-3.htm#section164 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:


<blockquote><tt>(3) On application by a spouse, the court may set aside or replace with an order made under this Division all or part of an agreement described in subsection (1) 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 court may set aside or replace with an order made under this Division all or part of an agreement described in subsection (1) 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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<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the degree to which the agreement meets the objectives set out in section 161.</tt></blockquote></blockquote>


[http://www.leg.bc.ca/39th4th/3rd_read/gov16-3.htm#section148 Section 161] is the section that says why spousal support should be awarded.  
Section 161 is the section that says why spousal support should be awarded.  


====Property and Debt====
====Property and Debt====


[http://www.leg.bc.ca/39th4th/3rd_read/gov16-3.htm#section93 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 s. 164, s. 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 s. 164(3). The second test allows the court set aside the agreement, even if there are no problems with the circumstances when the agreement was being negotiated and signed, if the agreement is "significantly unfair". However, to determine significant unfairness under s. 93(5), looks at three factors not five:
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 s. 164, s. 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 s. 164(3). The second test allows the court set aside the agreement, even if there are no problems with the circumstances when the agreement was being negotiated and signed, if the agreement is "significantly unfair". However, to determine significant unfairness under s. 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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