In a nutshell, separating spouses and parents can resolve the issues arising from the end of their relationship by reaching an informal agreement, making a formal agreement, like a separation agreement, where everything is written down and the agreement is signed before a witness, or getting a court order. Informal agreements can be problematic because it can hard to prove the terms of the deal in the event of a disagreement. Going to court can be horribly expensive and take a great deal of time, and the decision will be made by someone who knows very little about the family.
Separation agreements, on the other hand, are a great way to go because the parties are able to negotiate the best solution to their particular problems in light of their particular circumstances; separation agreements can even include terms that can't be included in court orders. On top of this, agreements about parenting, child support and spousal support can be filed in court and enforced as if they were court orders, and the Family Law Act prohibits the court from making orders about spousal support and property and debt in the face of an agreement unless it sets the agreement aside.
Key to all of this, however, is the idea of negotiation, specifically fair negotiation, and this is where West Coast LEAF's special expertise comes in. West Coast LEAF was an intervenor in the famous (to family law lawyers) case of Rick v Brandsema, in which the Supreme Court of Canada said that separation agreements, even those signed after having legal advice, can be set aside if: one of the spouses made inadequate, incomplete or misleading disclosure of his or her finances; or, one of the spouses took advantage of a particular weakness or vulnerability of the other spouse, such as the spouse's ignorance, emotional state or precarious mental health.
The decision in Rick was profoundly influential on how the part of the Family Law Act about the setting aside of agreements about property was written. Here are the important parts of s. 93 of the act:
(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;
Subsection (3) summarizes the key points in Rick and these points are what West Coast LEAF deals with in its booklet. Setting Aside Agreements covers:(c) the degree to which the spouses relied on the terms of the agreement.
- the reasons why a separation agreement could be set aside;
- how to fairly negotiate a separation agreement;
- how to provide proper financial disclosure; and,
- how to work with a lawyer if you need to go to court to have a separation agreement set aside.
Obviously, Setting Aside Agreements can't cover all that there is to say on the subject, but it's a good, useful and very accessible starting point. My wikibook, JP Boyd on Family Law, is another place to get some basic information and discusses setting aside agreements on:
- cohabitation agreements, marriage agreements and separation agreements;
- enforcing agreements and the general principles of setting aside or changing agreements;
- changing agreements about children;
- changing agreements about child support and spousal support; and,
- changing agreements about property and debt.