There are always two ways of doing something, the hard way or the easy way. In family law, the easy way is usually through discussion and negotiation. The hard way usually involves a court battle. This segment will deal with the easy way; the hard way is dealt with in the following segment which will discuss changing agreements with the intervention of the court.

Amending an Agreement by Consent

Any agreement can be changed, or "amended," by another subsequent agreement. If the parties to an agreement both believe that their original agreement needs to be adjusted, and both of the parties agree on exactly how it should be adjusted, the parties can draw up a second agreement called an "amendment agreement" to the original agreement.

An amendment must refer to the original agreement, and is usually titled "Amendment to the Separation Agreement Exectuted on..." Amendments are usually very short as the idea is to change one particular part of an agreement rather than to rewrite the original agreement in its entirety. The Amendment should specify which particular paragraph of the original agreement is being changed, and then set out the new text of that paragraph. Just like the original agreement, the amendment must be formally executed by both parties.

Amending an Agreement through Negotiation

A well-written agreement will usually set out a way that the parties will resolve disputes arising from the agreement. Sometimes this mechanism requires that the parties to go to court; sometimes this mechanism prescribes some other means of dispute resolution, such as mediation, arbitration or negotiation.

Mediation is, in general, the best option. In mediation, the parties attempt to negotiate a resolution to their dispute with the help of a third party, the mediator, who is skilled in family law and works with the parties to get them to an agreement.

Mediation is not always appropriate, particularly where the problem is limited to one particular term of the agreement and it seems that neither party is willing to bend on the matter. In such cases, arbitration limited to that one issue should be considered since an arbitrator's job is to impose a settlement on the parties after listening to both sides.

Whatever method is chosen, it is usually better for the parties to arrive at a resolution of the problem themselves without having to go to court. This way the power remains in the hands of the people whose lives are affected by the agreement and who must live with it on a daily basis, rather than in the hands of someone else, a judge, who may very well make a decision no one is happy with. It is also usually a lot less expensive to deal with problems this way than through the courts.

See the section "Alternatives to Court" for more information on mediation and arbitration.

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In general, the courts are reluctant to meddle with separation agreements. In fact, the Court of Appeal for British Columbia has said that separation agreements should be treated by the courts with "great deference." This is because a separation agreement is a private contract between two parties which is the product of an often lengthy process of negotiation; the courts are usually unwilling to disturb an agreement which two people freely entered into. The courts will be especially reluctant to alter a final order that was the product of a separation agreement.

The questions that the court will want answered are: What has changed between the date of the execution of the agreement such that one of the parties should be allowed to alter the agreement over the objections of the other party to the agreement? Is there some aspect of the agreement or how the agreement was made that demands the intervention of the court? Was there some fundamental unfairness surrounding the negotiation of the agreement?

A party asking the court to interfere with an agreement must, in general, show that

1. the agreement is fundamentally unfair or invalid, or,
2. his or her circumstances, or those of the children, have changed significantly since agreement was executed such that it is no longer fair,

before the court will consider making an order different than the terms set out in an agreement.

The Validity of Agreements

Just like a commercial contract, the validity of a family agreement can be challenged on one or more of the following grounds:

1. the agreement was not freely entered into, that is, one or both of the parties were under duress or coercion when the agreement was negotiated or executed;
2. the agreement is "unconscionable," that is, that the agreement is obviously and seriously unfair to one of the parties;
3. one of the parties entered into the agreement without the benefit of independant legal advice and did not fully understand what the agreement meant;
4. one of the parties entered into the agreement without full disclosure being made by the other party or based on incorrect information supplied by the other party; or,
5. one of the parties was under the "undue" influence of the other party when the agreement was entered into, or entered into the agreement mistakenly.

Duress and Coercion

The courts won't enforce an agreement, that is, they won't compel the parties to abide by an agreement, where one of the parties was forced or pressured to enter into the agreement. An agreement must be entered into freely.

Unconscionability

The courts won't enforce an agreement where one of the parties used a position of power to achieve an unfair agreement. This can include threats and manipulation, as well as the execution of an agreement in circumstances of extreme emotional stress, such as before a wedding, following a hospitalization, or during an emotional breakdown.

Agreements that are hugely unfair can also be found to be unconscionable, as can agreements formed under a fundamental misunderstanding about the nature of the family finances or one party's assets.

Independent Legal Advice

A spouse may be able to challenge the validity of an agreement where he or she did not receive independent legal advice — or even proper independant legal advice — before executing the agreement. Independent legal advice helps to ensure that both parties are on a more or less equal footing going into the agreement, and to ensure that one party doesn't unintentionally enter into an unfair agreement.

There is, however, no requirement that independant legal advice be sought before an agreement is executed. In most situations, the absence of independent legal advice may not be enough to overturn an agreement by itself.

Fraud and the Failure to Make Full Disclosure

When people enter into an agreement, they do so on the assumption that certain material facts are true, that each is earning as much money as they say thay are, that each has no more assets than they say they have, and so forth. These assumptions are the foundation on which the agreement is built. If one of the parties has failed to make full disclosure of these sorts of material facts, or if one party has lied about or misrepresented these facts, the courts may be willing to overturn an agreement.

Change of Circumstances: Reassessing Support

The court can make an order for spousal or child support, despite the existence of a valid separation agreement which might already deal with these issues. The court will, however, be strongly influenced by what an agreement has to say about support and will give the agreement a great deal of weight in deciding whether to make an order any different than what the agreement sets out.

Child Support

As in all matters concerning children, the courts' primary concern is with the best interests of the child. The courts will rarely — if ever — vary an agreement that provides that child support shall be paid in accordance with the federal Child Support Guidelines. By the same token, the courts will be reluctant to reduce a child support provision which is higher than what the Guidelines provide where the higher level is reasonable, because it is logically in the best interests of the child to have the benefit of as much support as possible. The courts will almost always increase a provision which is less than what the Guidelines would mandate.

The Guidelines came into effect on 1 May 1997. Prior to this, there was no consistent way to establish how much support a child should receive. As a result, it is not necessarily true that the court will automatically apply the Guidelines to agreements made before May 1997. In general the court will not interfere with provisions for child support which it finds to be reasonable and in the best interests of the child.

The "change of circumstances" which will justify the court making an order for child support, different than what an agreement requires, are fairly straightforward:

• The payor's income has increased.
• The payor's income has decreased.
• One or more children is no longer living mostly with the parent receiving support.
• One or more children is now spending 40% or more of their time with the payor.
• One or more children is no longer entitled to receive support.

See the chapter "Child Support > Making Changes" for more information.

Spousal Support

Both the Divorce Act and the Family Relations Act allow the court to make an order for spousal support contrary to the terms of an existing separation agreement. In making such an order, however, the court is required to bear the terms of the agreement in mind. This will affect the court's decision, as there may be a presumption that the amount agreed to is fair and reasonable.

In Pelech v. Pelech, a 1987 case of the Supreme Court of Canada, the court had this to say about the matter:

"...Where the parties have negotiated their own agreement, freely and on the advice of independent legal counsel, as to how their financial affairs should be settled on the breakdown of their marriage, and the agreement is not unconscionable in the substantive law sense, it should be respected. People should be encouraged to take responsibility for their own lives and their own decisions."

As a result, to vary an agreement for spousal support, the person seeking the change must show that there has been a change in circumstances that is "substantial, unforeseen and of a continuing nature" related to the marriage. While some courts have held that a failure to become self-sufficient and find gainful employment is enough of a change in circumstances to warrant changing an agreement, in general the applicant must demonstrate that there has been a serious and unexpected change in his or her circumstances.

The "change of circumstances" which might justify the court making an order for spousal support different than what an agreement provides for include:

• The recipient's income has increased such that he or she requires less support.
• The recipient has remarried or entered into a new relationship such that he or she is being supported by someone else.
• The payor has retired.
• The payor's income has decreased and is expected to continue to remain at the lower level.

See the chapter "Spousal Support > Making Changes" for more information.

Unfairness: The Division of Property

The provincial Family Relations Act deals with the division of family assets between spouses. The assets of common-law couples are divided under the law of trusts, however the Family Relations Act will apply where a common-law couple has made an agreement which deals with assets, under s. 120.1 of the act.

There are three critical sections of this act which bear on the division of property under separation agreements:

To simplify things, s. 61 defines "marriage agreement" for the purposes of the parts of the act which deals with the division of assets, Parts 5 and 6. Section 65 allows the court to vary the division of property set out by an agreement where the division prescribed by the agreement is unfair. Section 68 applies to agreements that aren't "marriage agreements" as defined by s. 61, and allows the court to review such agreements.

The effect of these sections is to allow the court to vary the parts of a separation agreement dealing with property where the agreement is unfair, so long as the agreement qualifies as a "marriage agreement" under s. 61. For the purposes of s. 61, a "marriage agreement" must:

1. be between a husband and wife;
2. concern family property, at least in part;
3. be in writing; and,
4. be signed by both spouses whose signatures are witnessed.

In the case of Gold v. Gold, a 1993 case of the Court of Appeal for British Columbia, the court had this to say about fairness:

"If the agreement is unfair within one or more of the [criteria listed in s. 65], then the Court has a wide discretion to reapportion the family property to achieve fairness. However, I find nothing in the Family Relations Act, nor in the authorities, which suggests that only equality or near-equality can be fair. ... Many divisions of family property must be unequal in order to be fair."

See the sections "Unmarried Couples" and "Family Assets" for more information.

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When a party to a family agreement doesn't fulfil his or her obligations under the agreement, that person is said to be "in breach" of the agreement or "in breach of contract." In family law, unlike commercial contract law, a "breach" is considered to be limited to the particular term of the agreement which was disobeyed rather than to the agreement as a whole. As a result, the innocent party is not allowed to treat an agreement as broken or cancelled because the other person has breached it, no matter how important the part of the agreement that was breached might be.

When a term of an agreement is breached, the innocent party is entitled to take steps to compel the other party to comply with the agreement. This is called "enforcing" the agreement. How a separation agreement is enforced depends largely on which particular term of the agreement is breached. Some terms, like those dealing with child support, are fairly easy to enforce. Other terms, like those dealing with access, are much harder to deal with.

Filing Agreements in Court

The Family Relations Act allows family agreements to be filed in court. Once an agreement is filed, the parts dealing with children, child support and spousal support can be enforced as if the agreement were an order of the court. This is not to say that a filed agreement is an order of the court, only that it can be enforced as if it were an order.

Two sections of the act are relevant:

In other words, written agreements can be filed in either the Provincial (Family) Court or the Supreme Court and be enforced as if they were orders of those courts, but only the Provincial (Family) Court can vary an agreement.

In the author's view, family law agreements should be filed in court as a matter of course where there are any concerns at all about a party's ongoing compliance with an agreement.

Custody of Children

Someone who interferes with a parent's right to have custody of his or her child may be guilty of a criminal offence under the Canadian Criminal Code, in addition to being liable for the breach of a family agreement. This sort of interference with a custodial parent's rights is called "abduction." Section 128 of the Family Relations Act makes it an offence, under the provincial Offence Act, to interfere with custody.

The Criminal Code's sanctions against abduction apply throughout Canada. Canada is also a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. This convention allows for the apprehension and return of children between nations that have signed the accord.

Ordinarily, where a party can prove that they have custody of the child, usually by showing a copy of the separation agreement, the police will usually at least speak to the abducting parent, if not actually retrieve the child. In situtations of joint custody, however, the police are a lot less likely to intervene as it may not be clear to them who has the legal right to have the child with them.

There are a number of remedies available that do not include the involvement of the police. Where the location of the party who has taken the child is known, the first step is to apply to court for an order that the child be immediately returned to the custodial parent. Such an order can include a "peace officer enforcement" clause, a clause which requires any police officer in the province to assist in the return of the child. This application can be made on an ex parte basis, that is, without notifying the other party of the application. Other orders such as injunctions or restraining orders may also be sought for additional protection.

Access to Children

This is one of the most difficult terms to enforce because the remedies available to the innocent party are so limited. Firstly, if the agreement dealing with access has been filed in court, the innocent party can make a court application to force compliance with the agreement by making an application for the other party to be found in contempt of court. Secondly, if the agreement does not set out specific times for the access to take place, the innocent party can make an application for access to be specified in the form of a court order.

Most conflicts between parents about access start with agreements that are vague. Agreements for "liberal and generous access" are notorious for causing problems, since they don't set out what exactly liberal and generous access means. Even an agreement for access "from Friday evening until the following Sunday evening" can cause problems because it isn't clear who is doing the picking-up and dropping-off and no specific times are set for the exchange of the child.

The easiest way to address problems like this are to apply for an order making the terms of access more specific, such as "John will pick the child up from school on every other Friday and shall return the child to Jane on the following Sunday at 7:00pm." Every aspect of access can be specified in great detail.

Note that little can be done to enforce access with respect to a parent who is refusing to exercise his or her access rights under an agreement. In general, the innocent parent winds up having no choice but to adopt a "use it or lose it" attide, on the basis that either the breaching parent sees the child more reliably to give the child a sense of stability, or the parent doesn't see the child at all.

Child and Spousal Support

When a payor falls behind in his or her support payments or stops making them altogether, he or she is said to be "in arrears" of support. This is a breach of the separation agreement which requires the payor to make his or her support payments. Support is usually the easiest part of an agreement to enforce.

Once an agreement is filed in court, either in the Provincial (Family) Court under s. 121 of the Family Relations Act or in the Supreme Court under s. 122 of the act, the parts of the agreement dealing with spousal or child support can be enforced by the provincial Family Maintenance Enforcement Program. This is a free service for the party entitled to collect support and which can be very effective in forcing a payor to meet his or her obligations and monitor ongoing payments.

See the chapters "Child Support > Arrears of Support" and "Spousal Support > Arrears of Support" for more information. Contact information for FMEP is provided in the section "Resources & Links."

Property

Where an agreement provides for the specific division or ownership of assets, action can be taken to enforce the agreement in the Supreme Court for breach of contract. Such an application would typically be for an order that the breaching party surrender the property or be comeplled transfer the title of the asset to the innocent party.

An application for an order that the agreement be enforced as a contract is called an application for the "specific performance" of the agreement: the applicant want the breaching party to be forced to live up to the agreement and take the steps he or she is required to take to complete the agreement.

Both married and unmarried couples can apply to court to enforce a separation agreement.

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