THE IMPORTANCE OF A WILL
Until parties are divorced, prior wills made during marriage are not automatically revoked by separation and parties can still apply under legislation governing wills variation to attack the will of a prior spouse who may have not divorced, even if are separated. It is therefore important that upon separation, you consider making a new will revoking the prior wills, which likely benefit your spouse. Once such a will is made, should you pass on prior to your case being resolved, the case could be carried on for the benefit of your estate, which would likely mean your children. As well, the new will can assist your estate in that it will be an expression of intention of your desires as to who will obtain the benefits from your passing away, as opposed to your spouse receiving them. It is therefore always important to obtain an up-to-date will.
FAMILY LAW AGREEMENTS
For people who qualify as spouses under the Family Law Act, upon separation there is a presumption that each party will have a 50% interest in all family property in the name of the other party and in their name. This is subject to a Family Law Agreement to the contrary.
A Family Law Agreement is an agreement between two people who are about to enter into a marriage like relationship where they anticipate becoming spouses or have acquired, for the purpose of dividing assets or pensions under the Family Law Act, the status of spouses and which agreement these two spouses wish to be determinative of the division of their assets and debts upon separation instead of the provisions of the Family Law Act. These agreements can also determine if the parties wish it how spousal support will be determined or whether or not a spouse can apply for support.
The agreement is signed by both spouses and at least one party who witnesses their signatures. Historically if these agreements were entered into prior to the commencement of a relationship they were referred to as pre-nuptial or ante-nuptial agreements and if they arose during cohabitation they were referred to as cohabitation agreements. If they occurred after separation they were referred to as separation agreements. These distinctions and names are not any longer that important under the new Family Law Act because all such agreements which are in writing and witnessed by at least one person that finally divide assets between spouses or potential spouses are defined to be Family Law Agreements.
What is very important in finalizing any form of Family Law Agreement before or after a relationship ends is that each party has legal advice which is independent. In almost all cases where parties have independent legal advice and have voluntarily entered into an agreement with proper disclosure in the agreements will be upheld by the court and will be a barrier to spouses or former spouses proceeding to court under the Family Law Act to obtain a division of assets in a way that contradicts the agreement. This is especially important where rights at the end of the marriage have been released including entitlements to share in assets and to apply or obtain spousal support which can be totally released by the agreement. Prior to signing a Family Law Agreement you should consider contacting the Family Law practitioners at Dubas & Company to ensure you know your rights.
Under section 93 of the Family Law Act, a Family Law agreement may be set aside on the basis that there was some defect in the process of making the agreement or the agreement is otherwise significantly unfair having regard to the length of time that has passed since the agreement was made, the intention of the spouses in making the agreement to achieve certainty and the degree to which the spouses have relied upon the terms of the agreement. The court will not set aside the agreement for unfairness if upon consideration of all the circumstances it would not make an agreement that was substantially different from the one which is being reviewed.
In terms of the issue of whether or not there has been a defect in the process of coming to the agreement, the court will consider whether or not a spouse failed to disclose significant property or debts or other information when the parties entered into the agreement, whether a spouse at the time of entering the agreement took improper advantage of the other spouse’s vulnerability, distress, need, or ignorance, whether or not a spouse understood the nature or consequence of the agreement of whether or not other contractual doctrines which would set aside an agreement including but not limited to mistake under the agreement, duress, fraud, etc. are operative. Again however, the court even if it finds a defect in the process for one of these reasons, may decline to act if upon consideration of all the facts it determines that it would not have made an order for asset or debt division that was substantially different.
It should be noted again that substantial unfairness or difference is a significantly hard test to meet to set aside an agreement where each party has had independent legal advice, substantial and significant disclosure on the major issues and dispute. In short provided there is no disadvantage shown on these bases, courts have in the past and will continue to uphold agreements that have been freely negotiated with a reasonable amount of disclosure on material issues. Of course, the amount of disclosure will depend upon the circumstances of each individual case. Furthermore the new higher test to set aside an agreement of substantial unfairness will likely mean that as the Family Law Act moves forward that it will be even more likely that Family Law Agreements will be enforced then it was under the prior Family Relations Act.
With regard to child support, child custody or parenting time and access, prior to separation, parties cannot enter into a Family Law Agreement which determines these issues. However if they are contemplating separation or have become separated they can enter into a written agreement to address these child related issues on a final basis. Such an agreement will be given significant weight after it is signed and generally would only be varied if it is clear that it does not properly address child support or it is clear that it does not properly represent what is in the best interests of a child or children regarding guardianship, custody or parenting time.
Enforcing Family Law Agreements
If your agreement was made after March 18, 2013 then the provisions of the Family Law Act apply and your agreement can be filed based upon suing on the agreement itself or filing the agreement with either the Supreme Court of British Columbia on all issues or the Provincial Court of British Columbia on issues related to support and parenting time and access and enforcing the agreement as an order of the court. Dubas & Company can provide you with the appropriate assistance in either case.
If your Family Law Agreement previously known as a Marriage Agreement and/or Separation Agreement was finalized prior to March 18, 2013 and you wish to enforce it or set it aside the provisions of the former act being the Family Relations Act apply to any such proceeding respecting the division of property. This ensures that agreements completed inconsideration of the old act will be determined under the prior principals. Most notably asset division agreements under the FRA could be set aside on mere unfairness and not substantial unfairness. In part the Family Law Act was enacted to ensure that agreements were more enforceable and was varied less often. This also follows from the provisions of the act which indicate out of court settlement is to be preferred whenever possible.
Agreements entered into prior to March 18, 2013 respecting child custody, spousal support guardianship, access and child support can be enforced and/or varied under the Family Law Act and Divorce Act (Canada) in the appropriate cases.
Should you wish to vary or enforce any written family law agreement you should consult a lawyer like the family lawyers at Dubas & Company for an appointment to discuss your situation.
It is often important to act with some dispatch as most entitlements to vary or enforce an existing agreement will be limited to a two year time frame from the date of the agreement and in fact applying under the Family Law Act for asset and debt division is limited to two years after separation for unmarried spouses and two years from the date of divorce for married spouses.
Contact us for a no-charge 20 minute consultation*:
Dubas and Company
email: jdubas@divorcebc.net
605 – 938 Howe Street
Vancouver, BC V6Z 1N9
Tel: 604.697.9107
Fax: 604.697.9108
*20-minute consultations must be in-person at our law offices, if at all possible.