BC Marriage agreements and Vancouver separation agreements can be varied if they are unfair. A key factor is often whether one side had independent legal advice and the other did not. Rarely, the independent legal advice a party receives is so bad that it leads to an agreement being varied. If you want to ensure your agreement is fair and it will be upheld by a court, be sure you hire an experienced family lawyer who understands the law and who can properly protect you. Call our top rated lawyers toll free at 1 877 602 9900.
In the recent decision of Kearns, the court found the legal advice provided to the husband was so lame that the agreement that gave the wife all of the family home could not be upheld. This case points out that both sides need to get independent legal advice to ensure any agreement the parties sign id fully explained to them and they are told of their options to sign or not sign any agreement.
One wonders what experience this lawyer had in family law given the Court’s statements:
[126] The mother says that the father received legal advice prior to entering into the agreement and that is a factor which should weigh against setting aside the agreement. However, it is clear that the legal advice the father received was inadequate to alleviate any unfairness.
[127] The lawyer the father saw did not render an opinion as to the fairness of the agreement or an opinion as to whether the father should sign it. The lawyer testified that he did not consider it part of his role to provide that advice. The lawyer did not explain the relevant portions of the legislation, or explain to the father how the agreement may affect him over time. He did not recommend any changes to the agreement to protect the father’s interests.
[128] It was apparent from the lawyer’s evidence that he misapprehended the entire meaning of the agreement in that he thought the parties were going to sell the matrimonial home and repay $350,000 he thought the father had spent, pay off all the debt against the house, and then the mother would use the net proceeds to purchase a new home which would be her sole property. The lawyer testified that he did not recommend a clause be put in the agreement that the mother pay the mortgage because he thought, incorrectly, that the mortgage would be paid off when the house was sold.
[129] The lawyer clearly could not have explained the agreement to the father because he did not understand it. His understanding that the house would be sold and the debts would be paid is not what the agreement states.
[130] The presence of the father’s mother at the meeting also does not alleviate the unfairness. It is apparent from his mother’s evidence that she was there to encourage him to sign the agreement in order to save his marriage and his family. Neither of the father’s parents had any particular experience with lawyers.
[131] The nature of legal advice in the family law context has been discussed in J.K.T. v. A.J.T., 2012 BCSC 491, and Gurney v. Gurney, 2000 BCSC 6. As stated in Gurney at para. 29:
In the family law context, providing independent legal advice must mean more than being satisfied that a party understands the nature and contents of the agreement and consents to its terms. The solicitor should make inquiries of the party so as to be fully apprised of the circumstances surrounding the agreement. The party should be advised of his or her legal rights and obligations in relation to the subject matter of the agreement and advised of the consequences associated with a refusal to sign. The solicitor should offer his or her opinion on the question of whether it is appropriate for the party to sign the agreement in all of the circumstances. It is only with that kind of advice that the party can make an informed decision about the advisability of entering into the agreement as opposed to pursuing some other course. In this regard, the cases of Turyk v. Derby, [1980] B.C.J. No. 773 (B.C.S.C.), Inche Noriah v. Shaik Allie Bin Omar, [1929] A.C. 127 (H.L.) and Brosseau v. Brosseau (1989), 63 D.L.R. (4th) 111 (Alta. C.A.) are of assistance.[132] In my view, the evidence is clear that the legal advice the father received did not meet an adequate standard which would alleviate the unfairness of the agreement.
[141] Having considered the various factors set out in s. 65(1), including the $200,000 gift, the monies the mother received for the vehicles, and the fact the mother has had exclusive use of the matrimonial home and has received all of the rental income, I am of the view that a 60/40 apportionment of the net proceeds of the matrimonial home in favour of the wife is appropriate. Accordingly, I am ordering that the matrimonial home be sold, with the parties having joint conduct of the sale. The mother will receive 60% of the net proceeds and the father will receive 40% of the net proceeds.
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