BC SEPARATION AGREEMENT ENFORCEMENT AND VARIATION

September 29th, 2009

img_5802Parties often settle their marital breakdown differences by entering into a contract called a separation agreement. How are separation agreements enforced and in what courts in British Columbia? Our Family Relations Act (“FRA”) allows agreements to be filed in either the Provincial family Court or the Supreme Court of BC. Until recently there has been a dispute over whether the Supreme Court of BC has the power to vary a separation agreement or only the power to enforce it. This issue arose in K. v. K. 2009 BCSC 69 and the court held despite wording differences in the FRA, the Supreme Court has the power to VARY- meaning to change the terms of the contract- as well as to enforce.

[18] Some courts have expressed doubt as to whether the Supreme Court has jurisdiction under s. 122 of the Family Relations Act to vary a separation agreement filed under that section.

[19] Sections 121 and 122 provide as follows:

Enforcement of agreement as court order

121(1) In this section:

…

“spouse” means a spouse as described in paragraph (a), (b) or (c) of the definition of “spouse” in section 1 (1) and includes a person who acknowledges in a written agreement filed under this section that he or she is or was a spouse of another person, whether or not they are or were married.

(2) If a signed copy of a written agreement containing a provision respecting

(a) …

(b) the maintenance of ‚Ķ a person by the person’s spouse

is filed in the Provincial Court in accordance with the Provincial Court (Family) Rules, the provision is enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act.

(3) Subsection (2) applies in respect of

(a) a written agreement made after June 30, 1995, and

(b) a written agreement made before July 1, 1995, but only if a consent in the form prescribed by the Provincial Court (Family) Rules is filed with the agreement.

(4) A provision that is referred to in subsection (2) and is contained in a written agreement filed under this section may, at any time, be varied or rescinded

(a) by a new written agreement filed in the Provincial Court in accordance with the Provincial Court (Family) Rules, or

(b) by the Provincial Court, on application and subject to sections 20 and 96.

(5) The filing of a written agreement under this section does not

(a) restrict or prevent a court from making an order for the same relief as is provided for in the agreement, or

(b) prevent the agreement from being filed or enforced in the Supreme Court under section 122.

(6) If a provision referred to in subsection (2) is contained in an agreement that was filed under this section before July 1, 1995,

(a) the provision continues to be enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act, and

(b) subsection (4) of this section applies.

(7) A written agreement filed under section 2 of the Unified Family Court Act, S.B.C. 1974, c. 99, before March 31, 1979 is a written agreement under this section.

Enforcement of agreements filed in Supreme Court

122(1) If a signed copy of a written agreement containing a provision respecting

(a) …

(b) the maintenance of ‚Ķ a person by the person’s spouse

is filed in the Supreme Court in accordance with the Rules of Court, the provision is enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act.

(2) Subsection (1) applies in respect of

(a) a written agreement made after June 30, 1995, and

(b) a written agreement made before July 1, 1995, but only if a consent in the form prescribed by the Supreme Court Rules is filed with the agreement.

(3) The filing of a written agreement under this section does not prevent the agreement from being filed, enforced, varied or rescinded in the Provincial Court under section 121.

(4) If a provision referred to in subsection (1) is contained in an agreement that was filed under this section before July 1, 1995, the provision continues to be enforceable under this Act or the Family Maintenance Enforcement Act as if the provision were contained in an order made under this Act.

(5) The definitions in section 121 (1) apply in this section.

[emphasis added]

[20] What is absent from s. 122 is the mirror provision of s. 121(4).

[21] In Slaney v. Slaney (1997), 71 A.C.W.S. (3d) 321 (B.C.S.C.), Master Joyce (now Mr. Justice Joyce) held that the Supreme Court had no jurisdiction to vary a written agreement filed under s. 122. At para. 4 Mr. Justice Joyce observed in respect to those sections (at para. 4):

I am satisfied that this court has no jurisdiction to vary the parties’ agreement per se. Sections 74 and 74.1 of the Family Relations Act, R.S.B.C. 1979, c. 121 (now ss. 121 and 122, R.S.B.C. 1996, c. 128) provide for the filing of separation agreements with the Provincial Court and/or the Supreme Court. Section 74 permits the Provincial Court to enforce (s. 74(2)) and to vary (s. 74(4)) an agreement which is filed with that court. Section 74.1 permits the Supreme Court to enforce an agreement which is filed with that court but it lacks a provision corresponding to s. 74(4) permitting the court to vary an agreement. I am of the view that if the legislature had intended that this court have that jurisdiction it would have made the two sections identical to one another. It seems that the legislature considered that if the parties wished to seek a variation of an agreement they ought to have resort to the Provincial Court. Perhaps it was thought that the Provincial Court would provide a more economical or expeditious forum for seeking variation than would the superior court. In any event, I am satisfied that is the effect of the legislation. Further, I am unaware of any right which this court has to “vary” a valid enforceable contract made between two persons unless that right is given by statute.

[22] However, in the result Mr. Justice Joyce held that the parties could file the agreement in Provincial Court and seek to vary the agreement in that Court. He held at para. 8, “In these circumstances, I have decided that it is in the interests of the parties and [their children] and in the interests of justice that this Court take jurisdiction.”

[23] In Sookorukoff v. Sookorukoff, [1998] B.C.J. No. 2892 (S.C.) Mr. Justice McEwan held that the Supreme Court did not have jurisdiction to vary the spousal support provisions of a separation agreement filed under s. 122 of the Family Relations Act. He nevertheless made an order by consolidating the application with the petition for corollary relief under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

[24] In Drummond v. Laprise, [1999] B.C.J. No. 122 (S.C.) (In Chambers) Master Bolton also considered ss. 121 and 122, and the ability of the Supreme Court to vary a custody and maintenance agreement registered in the Provincial Court pursuant to s. 121. He held that there was considerable doubt as to the proper interpretation of the two sections and he decided to hear the application on the basis that it seemed the proper result would be to avoid putting up procedural roadblocks that would prevent the applicant from reaching a destination accessible by another route.

[25] In this case, if the agreement had not been filed in the Supreme Court, L.K. could presumably have commenced an originating application for spousal support under ss. 89 and 91 of the Family Relations Act. It seems completely illogical to hold that because the separation agreement was filed in the Supreme Court, L.K. is without remedy in this Court but must look to the Provincial Court for relief.

[26] Turning to s. 122, it provides that filing an agreement under the Family Relations Act enables the parties to enforce the agreement as if it were an order made under that Act. Subsection 2 requires the consent of the parties in the form prescribed if the agreement pre-dates July 1, 1995. The agreement in this case does not pre-date 1995 but, in any event, a consent was filed. Subsection 3 of s. 122, a permissive section, provides that the filing in the Supreme Court of a separation agreement does not prevent the agreement from being filed, enforced, varied or rescinded in the Provincial Court under s. 121.

[27] Master Bolton appeared to conclude in Drummond that a party could apply in Supreme Court to vary an agreement filed in Provincial Court by simply filing the agreement in the Supreme Court. Impliedly, one would assume that he thought an agreement filed in the Supreme Court could be varied by the Supreme Court.

[28] In my view, s. 122 is not a procedural bar to an application under s. 89 and s. 90 on an originating application for spousal support. I do not read s. 122 as depriving this Court of jurisdiction to entertain such an application because the agreement was filed under that section. To conclude that only the Provincial Court can hear an originating application for spousal support where an agreement has been filed in the Supreme Court seems illogical given that the Supreme Court and the Provincial Court have concurrent jurisdiction.

[29] In any event, I agree with the approach taken by Mr. Justice Joyce and Master Bolton that it is not in the interests of justice to force these parties to recommence this entire proceeding in Provincial Court, particularly where neither party objects to this Court’s jurisdiction. I conclude that this Court should take jurisdiction to hear this application.

Having concluded the court had the power to vary in Supremme Court it had to consider whether the criteria for varaition had been met and the test for variation of a separation agreement in Canada is as follows:
42] Considering the two-stage analysis in Miglin, the first stage is to analyze the circumstances in which the agreement was made to determine if the agreement was obtained fairly and whether it was substantially in accordance with objectives of the Divorce Act or the Family Relations Act as in this case.

In this case the Judge decided the agreement was unfair from the outset and in balancing the objectives of the Divorce Act and giving some deference to the freely negotiated agreement did not strictly apply the Spousal Support Advisory Guidelines and although the range under these guidelines was $1823-$2430 monthly the court awarded interim support pending trial of $1200 monthly.

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