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Difference between revisions of "Changing Family Law Agreements"
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Changing Family Law Agreements (view source)
Revision as of 15:33, 1 August 2017
, 15:33, 1 August 2017no edit summary
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<blockquote><tt>3. Sally's income is $45,000 per year as at the date on which this Amending Agreement is made. The parties agree that Sally's child support obligation, set out at Paragraph 28 of the Agreement made on 1 April 2010, will be $684 per month, commencing on the first day of the month following the month in which this Amending Agreement is made.</tt></blockquote> | <blockquote><tt>3. Sally's income is $45,000 per year as at the date on which this Amending Agreement is made. The parties agree that Sally's child support obligation, set out at Paragraph 28 of the Agreement made on 1 April 2010, will be $684 per month, commencing on the first day of the month following the month in which this Amending Agreement is made.</tt></blockquote> | ||
Just like the original agreement, the amending agreement must be signed by both parties in the presence of a witness, who watches each party sign the agreement and then signs the agreement | Just like the original agreement, the amending agreement must be signed by both parties in the presence of a witness, who watches each party sign the agreement and then signs the agreement themself. | ||
===Amending an agreement through negotiation=== | ===Amending an agreement through negotiation=== | ||
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====Lack of independent legal advice==== | ====Lack of independent legal advice==== | ||
A spouse may be able to challenge the validity of an agreement where | A spouse may be able to challenge the validity of an agreement where they did not receive independent legal advice before entering into the agreement. Independent legal advice helps to ensure that both parties are on a more or less equal footing, and to ensure that one party doesn't unintentionally enter into an unfair agreement. | ||
There is, however, no requirement that independent legal advice be sought before an agreement is signed. In most situations, the absence of independent legal advice alone will not be enough to overturn an agreement by itself. | There is, however, no requirement that independent legal advice be sought before an agreement is signed. In most situations, the absence of independent legal advice alone will not be enough to overturn an agreement by itself. | ||
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That last part, at s. 164(3)(d), is about the common law of contracts, discussed above. | That last part, at s. 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 | 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: | ||
<blockquote><tt>(5) Despite subsection (3), the court may set aside or replace with an order made under this Division 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 court may set aside or replace with an order made under this Division 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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====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 s. 164 on spousal support, discussed above, 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 | 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 on spousal support, discussed above, 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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<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 2013 case from the Supreme Court of British Columbia, [https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc983/2013bcsc983.html?resultIndex=1 ''L.G.'' v. ''R.G.''], the Court said that the term "significant unfairness" is intended to create greater certainty by limiting when the Court will intervene to situations which are "unjust or unreasonable". In a 2014 case, [https://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1552/2014bcsc1552.html?resultIndex=1 ''Remmem'' v. ''Remmem''], the Supreme Court of British Columbia said that in order for there to be "significant unfairness", the unfairness must be compelling or meaningful having regard to the factors set out in the legislation. | In a 2013 case from the Supreme Court of British Columbia, [https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc983/2013bcsc983.html?resultIndex=1 ''L.G.'' v. ''R.G.''], the Court said that the term "significant unfairness" is intended to create greater certainty by limiting when the Court will intervene to situations which are "unjust or unreasonable". In a 2014 case, [https://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1552/2014bcsc1552.html?resultIndex=1 ''Remmem'' v. ''Remmem''], the Supreme Court of British Columbia said that in order for there to be "significant unfairness", the unfairness must be compelling or meaningful having regard to the factors set out in the legislation. | ||
===Setting aside agreements about property and debt under the ''Family Relations Act''=== | ===Setting aside agreements about property and debt under the ''Family Relations Act''=== | ||