VANCOUVER FAMILY LAW AGREEMENTS

Creating a Family Law Agreement: The Process

A family law agreement must be signed by both spouses and witnessed (the same person can witness both signatures). Both parties to a family law agreement should also receive independent legal advice. This will help to ensure that the agreement is a valid contract and that it satisfies all requirements of the Family Law Act.

The process of negotiating a family law agreement can be challenging, depending on the complexity of the issues and level of cooperation between spouses. When negotiations are not fruitful, mediation is often the best option to reach an agreement. Mills Family Law has extensive experience helping our clients through this process. We aim to provide high quality, professional and efficient service, while always being sensitive to the needs of you and your family.

Enforcing Family Law Agreements

A family law agreement is a binding contract, reached by two spouses after what are typically careful and time-consuming negotiations. For this reason, the BC Court of Appeal has said that family law agreements should be treated with “great deference.” Courts will therefore generally enforce family law agreements. When a spouse asks the court to enforce an agreement, the court has various enforcement tools, depending on the term in an agreement that is being breached.

Family law agreements about parenting arrangements, contact, child support and spousal support can be filed with either the Provincial or Supreme court and will then be enforced under the Family Law Act as if they were court orders. Family law agreements about property and debt can be enforced by starting an action in Supreme Court for breach of contract.

Enforcing Child Support and Spousal Support Agreements

Family law agreements about child support and spousal support can be filed with either the Provincial or Supreme court and will then be enforced under the Family Law Act as if they were court orders. The court has general powers under FLA s. 230 to enforce agreements about child and spousal support by requiring a person in breach of an agreement to 1) provide security for future compliance; 2) pay expenses caused by the breach; 3) pay up to $5,000 to the other party, or to a child or spouse who was affected by the breach, or 4) pay up to a $5,000 fine. The court also has “extraordinary enforcement powers” under FLA s. 231 to imprison the person in breach for up to 30 days.

Enforcement for agreements about child and spousal support is also available through the Family Maintenance and Enforcement Program (“FMEP”) after a family law agreement has been filed in court. FMEP provides a free enforcement service and has power to garnish wages from the payor of support and can also seize passports and driver’s licenses to encourage payment.

Enforcing Parental Responsibilities and Parenting Time Agreements

Family law agreements about parental responsibilities, once filed in court, will be enforced as if they were court orders. As with child and spousal support, the court has general enforcement powers under FLA s. 230 and extraordinary enforcement powers under FLA s. 231.

Parenting Time and Contact Agreements

A written agreement about parenting time can be filed in court and will be enforced as if were a court order. If someone is wrongfully denied parenting time set out in an agreement or court order, the court has specific enforcement powers under sections 61 and 63 of the Family Law Act. The court can:

(a) require the parties to participate in family dispute resolution;
(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;
(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;
(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;
(e) require that the transfer of the child from one party to another be supervised by another person named in the order;
(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to
  (i) give security in any form the court directs, or
  (ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;
(g) require the guardian to pay
  (i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or
 (ii) a fine not exceeding $5 000.

The court also has extraordinary enforcement powers under section 231 of the Family Law Act, which include imprisonment and the ability to order a police officer to remove a child from a guardian who is in breach of an order for parenting time or contact.

When is Denial of Parenting Time Not Wrongful?

Under FLA section 62(2), denial of parenting time is not wrongful if:

(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;
(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;
(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;
(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;
(e) the applicant
  (i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and
  (ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;
(f) other circumstances the court considers to be sufficient justification for the denial.

How to Enforce Property Division Agreements in BC

Family law agreements about property and debt can be enforced by starting an action in Supreme Court for breach of contract. If the court agrees that a breach has occurred, an order for “specific performance” can be made to correct the breach. This might include requiring the sale of real property and personal property, or payment of a debt. An order that the person in breach should pay the legal costs of the other party is also usually made.

A Notice of Agreement can also be filed with the Land Title Office and will be registered as a charge on the title of a property under the Land Title Act. This will stop the property from being sold or mortgaged until the Notice of Agreement is cancelled.

When Courts Might Not Enforce a Family Law Agreement

Courts will generally enforce family law agreements. However, there are exceptions. An entire family law agreement may be cancelled by the courts if it is not valid under contract law. Parts or all of a family law agreement may be replaced by new order(s) under the Family Law Act.

Cancelling or Modifying Family Law Agreements in British Columbia

A family law agreement may be invalid if the process by which it was created is flawed in one of the following ways:

• A spouse did not enter into the agreement of their own free will. If a spouse is threatened, manipulated or pressured into signing a family law agreement, then the agreement is not fair and the courts won’t enforce it.
• The family law agreement is significantly unequal and there is not a reasonable justification for this unfairness.
• A spouse did not understand the agreement. This may occur if a spouse does not have their own lawyer to give them family law advice before they sign a family law agreement. Independent legal advice will help ensure that both spouses understand the agreement, including how their rights and responsibilities in the agreement compare to the law in BC.
• One spouse signed the family law agreement without full disclosure of family property and debt, or after being mislead by the other spouse.

Cancelling a Family Law Agreement under the Family Law Act

Section 214 of the Family Law Act allows the court to cancel and replace parts of a family law agreement with a court order. The Family Law Act contains different tests for cancelling different parts of a family law agreement.

Test for Cancelling Terms of Guardianship, Parenting Responsibilities, Parenting Time and Contact

Terms regarding guardianship, parenting responsibilities, parenting time and contact must all be made in the best interest of the child, as required by sections 44 and 58 of the Family Law Act. If a court determines that certain terms in a family law agreement are no longer, or never were, in the best interests of the child, then those parts of the agreement will be replaced with a new order. Read more about best interest of the child.

Test for Cancelling Terms of Child Support
The court can replace child support terms in a family law agreement if they depart from the Federal Child Support Guidelines in way that is unreasonable, pursuant to section 148 of the Family Law Act. The court can also replace child support terms if the family law agreement provides for inadequate child support, or if after the agreement is signed:

• The time that the child spends with each parent changes significantly;
• The incomes of the parents increase or decrease; or
• A child becomes ineligible for child support.

Read more about the Child Support Guidelines.

Test for Cancelling Terms of Spousal Support

To determine whether spousal support terms in a family law agree should be replaced, the court will apply one of two legal tests under section 164 of the Family Law Act. Either test, or both together, can be used as the basis on which to cancel a spousal support agreement.

The first test (FLA section 164(3)) looks at the validity of the spousal support agreement. If a spouse 1) provides insufficient or misleading information about their income, assets, debts, or other information 2) if they took improper advantage of their spouse’s vulnerability, 3) if one spouse did not understand the agreement, or 4) if the agreement is contractually invalid, then the court may set aside the spousal support terms of a family law agreement.

The second test is whether the spousal support terms in the agreement are significantly unfair when measured against the factors set out at section 164(5) of the Family Law Act. If they are, then even if the first test is passed the court can set aside the spousal support terms.

Test for Cancelling Terms for Division of Property and Debt

The Family Law Act provides two tests when asked to enforce property and debt terms in a family law agreement. The first test at FLA section 93(3) mirrors the first stage of the spousal support test at section 164(3). If a spouse 1) provides insufficient or misleading information about their assets, debts, or other information 2) if they took improper advantage of their spouse’s vulnerability, 3) if one spouse did not understand the agreement, or 4) if the agreement is contractually invalid, then the court may set aside the property division terms of a family law agreement. The second test permits the court to set aside a family law property agreement if it is significantly unfair under section 93(5) of the Family Law Act.

An application to set aside an agreement about property or spousal support must be made within two years from the date the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application.