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We are often asked to review BC separation agreement or BC marriage agreements with a view to setting the BC separation or BC Marriage agreement aside and Shelagh Kinney of our BC Family Law office had a nice win recently in a case on behalf of the wife in L v. L, a BC Supreme Court separation agreement variation 2010 decision.

Our Supreme Court in the Brandsema decision warned spouses that fair agreements made with full disclosure between spouses on an equal footing will be protected but unfair exploitive agreements will not be sanctioned. In Brandsema the Court focussed on non-disclosure by the husband and varied the agreement to give the wife more money on the following basis:

Abella J., speaking for the majority, stated (at paras. 1–6):

“This court has frequently recognized that negotiations following the disintegration of a spousal relationship take place in a uniquely difficult context. The reality of this singularly emotional negotiating environment means that special care must be taken to ensure that, to the extent possible, the assets of the former relationship are distributed through negotiations that are free from informational and psychological exploitation.

…

This appeal, therefore, attracts a spotlight to the duties owed by separating spouses during the process of negotiating and executing a separation agreement for the division of matrimonial assets. In Miglin, based on the inherent vulnerability of spouses during negotiations, this Court stated that in order to safeguard a separation agreement from judicial intervention, a spouse must refrain from using exploitative tactics. It held that the failure to do so, particularly if the agreement fails to materially comply with the objectives of the governing legislation, could well result in the agreement being set aside.

The circumstances of this case move us to consider the implications flowing from Miglin for the deliberate failure of a spouse to provide all the relevant financial information in negotiations for the division of assets. In my view, it is a corollary to the realities addressed by this court in Miglin that there be a duty to make full and honest disclosure of such information when negotiating separation agreements.

The husband’s exploitative conduct, both in failing to make full and honest disclosure and in taking advantage of what he knew to be his wife’s mental instability, resulted in a finding of unconscionability. The trial judge accordingly ordered that the wife be compensated in an amount representing the difference between her negotiated equalization payment and her entitlement under British Columbia’s Family Relations Act, R.S.B.C. 1996, c. 128. On the facts and law, I see no reason to disturb his conclusion.”

Spouses need to approach the settlement negotiations frankly and ensure the opposing party gets independent legal advice. Home made agreements are unlikely to protect either side and a little money and effort spent doing it right the first time will ensure savings on expensive legal fees after the fact.

Lorne MacLean

MacLean Family Law Group Layers and Articled Students