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Johanna Stein FLA

BC’s NEW FAMILY LAW ACT SAYS HOMEMADE AND ORAL FAMILTY AGREEMENTS MAY BE ENFORCED. WE WARN ALL OUR READERS THAT HOMEMADE DEALS OR ORAL AGREEMENTS MADE WITHOUT INDEPENDENT LEGAL ADVICE CAN BE ENFORCED. DON”T MAKE A HUGE MISTAKE OR TRY TO BE A HERO. MEET WITH US FIRST.

Our newest Vancouver family law associate, Johanna Stein, joins us after an early career as a BC Supreme Court clerk and after practicing with a large national law firm. She was attracted to us by our client focused “people not paper” approach. Today she explains that while the governments and courts encourage parties to settle your disputes it is important for both sides to have a lawyer before they settle to ensure the agreement is fair and worth more than the piece of paper it is written on. Homemade agreements can be binding so do not make a huge mistake that will be very expensive to fix.

Our BC government has created new rules for how agreements can be made and varied or thrown out entirely. These new rules in part follow the Supreme Court of Canada’s decision in Brandsema but also create a new test for changing an agreement if it would clearly unfair to uphold the properly negotiated agreement.

In 2012, the Family Relations Act will be replaced by a new Family Law Act and the test for setting aside or varying a valid  property agreement will change from a test of “unfair” to a test of “clearly unfair”. The government’s goal is to encourage agreements by providing greater clarity regarding when and how an agreement may be set aside:

• Parenting agreements may be set aside if they are not in the best interests of the child.
• Child support agreements may be set aside if they fail to comply with the Federal Child
Support Guidelines.
• All agreements may be set aside for lack of procedural fairness, such as significant failure to
disclose or where one party has taken unfair advantage of the other which basically follows the SCC case in Brandsema.
• Property and support agreements can be set aside for non-procedural reasons in limited
circumstances where it would be significantly unfair.

With the coming into force of the new Family Law Act at some point next year, “domestic agreements” will be given even more weight than before.

Setting aside agreements respecting property division
93 (1) This section applies if spouses have a written agreement respecting division of property and debt, with the signature of each spouse witnessed by at least one other person.

(2) For the purposes of subsection (1), the same person may witness each signature.
(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part 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:
(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
(b) a spouse took improper advantage of the other spouse’s vulnerability, including the other spouse’s ignorance, need or distress;
(c) a spouse did not understand the nature or consequences of the agreement;
(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.
(4) The Supreme Court may decline to act under subsection (3) if, on consideration of all of the evidence, the Supreme Court would not replace the agreement with an order that is substantially different from the terms set out in the agreement.
(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:
(a) the length of time that has passed since the agreement was made;
(b) the intention of the spouses, in making the agreement, to achieve certainty;
(c) the degree to which the spouses relied on the terms of the agreement.
(6) Despite subsection (1), the Supreme Court may apply this section to an unwitnessed written agreement if the court is satisfied it would be appropriate to do so in all of the circumstances.

Feel free to contact johanna@bcfamilylaw.ca or call her at 604-602-9000.