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Can a Separation Agreement be Contested?

Do you have a separation agreement signed already or have one in the works? If so, you should know about your rights and obligations.

A separation agreement is a private contract that establishes rights and responsibilities for spouses (including unmarried couples who have cohabitated for at least two years) on how they agree to go about various aspects of the dissolution of their relationship. The agreement may include clauses on custody, guardianship, parenting responsibilities, parenting time, contact time or access of any children, the division of property, and financial support. These clauses must adhere to contract law. Both parties must understand what they are signing and agree to all the terms. There should be no coercion, duress or undue influence on any of the parties to sign away rights or responsibilities in a separation agreement or pressure to agree to certain terms and conditions.

In British Columbia spouses can separate with or without a separation agreement. It is not mandatory to have an executed Separation Agreement before filing for a divorce. You can separate without trying to negotiate a Separation Agreement and proceed to mediation or court. Your trusted Separation Agreement lawyer in New Westminster can help you with whatever option you wish to explore to resolve your family law issues.

What Information Should You Have Before Entering Into a Separation Agreement?

Both spouses need to have a clear picture of the family’s financial status, including assets and debts. There is an onus on the parties to provide each other with complete and accurate financial information before starting to negotiate a fair agreement. Some of the most vital documentation to be aware of before entering into an agreement are:

  • Proof of all income sources (e.g., employment pay stubs, rental income, dividend income, etc.)

  • Canada Revenue Agency T1 General Income Tax returns for personal returns and Notices of Assessment;

  • Canada Revenue Agency Corporate Returns for incorporated companies and the Notices of Assessment ;

  • Bank statements for all accounts (deposit accounts, savings accounts, etc.);

  • Proof of all expenses and debts (e.g., recent credit card statements, mortgage statements, line of credit statements, car loan statements, lease payments, life

  • and health insurance payments); and

  • Statements of assets (e.g., RRSPs, TFSAs, RESPs, pensions, or other investments or a business that you or your spouse may have).

If your spouse is not providing you with access to these documents and information, you may wish to obtain an order to compel disclosure of these documents from your spouse.

What Can You Do If You Think Your Separation Agreement Is Unfair?

The short answer to this question is to sign the agreement. Get independent legal advice from Valerie Little, an experienced B.C. family law lawyer, before you sign any agreement. In fact, even if you have no immediate concerns about the fairness of the agreement, it is always advisable to have a lawyer review the draft agreement before it is signed. There could be terms that are omitted or there could be particular language that legal language that is worded in such a way as to be prejudicial to you and your family.

If you have already signed the agreement and you later believe that it might not have been fair to you, you should speak to an experienced lawyer such as Valerie who specializes in family law to discuss your options for setting aside the agreement.

The Supreme Court of Canada set out the rules for deciding when a separation agreement should be changed or thrown out in the case of Miglin v. Miglin [2003]. Generally, the courts do not want to interfere with private agreements. In the Miglin case, the court considered two main elements for whether they should step interfere with the private agreement between the spouses.

  1. When the agreement was made, was either party vulnerable in the circumstances?

  2. Was there pressure exerted on one spouse to agree to terms?

  3. Was there any or no professional assistance in the negotiation and/or drafting of the agreement?

  4. Was the agreement substantially compliant with the law as set out in the Divorce Act or provincial family law at the time the Separation Agreement was signed?

  5. Does the agreement still reflect the intentions of the parties?

  6.  Does the agreement permit both of you to financially support yourselves in accordance with what the law permits.

In 2009, following the case of Miglin, the Supreme Court of Canada looked at a similar issue in Rick v. Brandsema, where in addition to the Miglin criteria, the court considered the vulnerability of the wife given she suffered from mental health issues and the court considered the husband’s deliberate failure to provide full and frank financial information in order for her to be able to make an informed decision about her rights to the marital assets.

In this case, it was especially considered that the husband took advantage of the wife in order to negotiate an agreement more favourable to himself. The court ruled that a judge may set aside a separation agreement if it was unconscionable, and if the following questions are answered in the affirmative:

  1. Was there a failure to disclose assets?

  2. Did your spouse hide, lie about, undervalue, or transfer assets during your negotiations?

  3. Did your spouse take advantage of your mental health or other vulnerable condition?

  4. Did your spouse have access to all the family’s financial information while you had little or no access?

  5. Is the agreement fair and equal to both you and your spouse?

  6. Does the agreement permit both of you to financially support yourselves in accordance with waht the law permits?

In the event that you can show that you did not understand how the agreement would affect you, or if the agreement is “significantly unfair” (see ss. 93(3) and 93(5) of the BC Family Law Act), a judge may set the separation aside. However, it is important to note that despite the SCC decision that allows a judge to set aside a Separation Agreement, the Judge has a discretion to determine if the circumstances are appropriate to do so and each individual case will be decided on its merits. 

Amending an Agreement

In less contentious cases where both parties agree to change the Separation Agreement, it is possible to create an Amending Agreement. An Amending Agreement can be made through negotiation and settled without court involvement. It is advisable to have a lawyer properly amend the agreement. Again, you must ensure there is full disclosure, no coercion exists, and the Amending Agreement complies with the law. Consulting a trusted family law lawyer can assist in minimizing your exposure to having the Amending Agreement set aside in future for any one or more of these reasons. Mending an agreement can be a more amicable and cooperative method of settling disputes in cases where the circumstances have changed and the previous Agreement requires modifications or changes so it accords with the parties’ current wishes.

Consult with Valerie M. Little, Separation Lawyer

If you do not yet have a signed Separation Agreement or Amending Agreement, or would like to have one negotiated or prepared for you, protect yourself and put Ms. Little’s 30 years of family law experience to work for you by calling her at 604-526-3333. She can advise you on your unique family law circumstances and guide you in the direction which will be best for you and your family. Call today.


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