Interim Support Marriage Agreements Disputes -Agreements Don’t Always Bar Interim Support in BC
When will someone obtain BC spousal support in an interim support marriage agreements dispute? This question is often asked by people who may have foolishly signed an unfair agreement or who now suffer financial hardship under an agreement that no longer operates fairly. A skilled lawyer can assess your situation and provide a sound strategy to enable you to determine your interim spousal support rights in a interim support marriage agreements dispute. In cases of substantial income and assets the stakes are huge and it pays to get top notch legal advice. Call Lorne MacLean, QC at 604-602-9000 to meet with him to develop a plan. Marriage Agreements can serve a valuable purpose if fairly negotiated a properly crafted. Home made or poorly negotiated agreements may be worthless.
Most People Don’t Understand They Can Get Interim Support Despite A Support Waiver In a Marriage Agreement
British Columbia’s largest family law team at MacLean Law notes many people think an existing marriage agreement bars a successful application for interim spousal support. This is sad misconception and you should consult with our senior interim spousal support marriage agreements lawyers to get the straight goods on how interim spousal support works in your case if you are pursuing or defending an interim support and marriage agreements case. Unfair marriage agreements that were negotiated unfairly or although fairly negotiated no longer comply with the principles under our Divorce Act and Family law Act will not bar interim support from being awarded.
In a recent BC Supreme Court Family Law decision the court explained how interim support and marriage agreements interact in the BC family law system. Our interim support marriage agreements lawyers at MacLean Law have extracted the key principles and bolded the important factors you need to understand if you are involved in a contested interim support marriage agreements case:
[169] I turn next to consider the impact, if any, of the impugned marriage agreement on an award of interim spousal support.
[170] It is within the court’s discretion to make an interim order for spousal support despite the existence of a marriage agreement that purports to disentitle the applicant from support, provided the applicant is seeking to have the agreement set aside at trial: Thompson v. Thompson, [1987] B.C.J. No. 2339 (S.C.); Ziniuk v. Ziniuk (1986), 2 R.F.L. (3d) 398 (BCCA). The twin factors that typically dominate the analysis, beyond the applicant’s financial need and the payor’s financial means and ability to pay, are the strength of the applicant’s case to set aside the agreement and his or her capacity to repay the amount awarded on an interim basis.
[171] The respondent concedes that this Court has jurisdiction to make an interim support order in the face of the parties’ marriage agreement. He asserts that the discretion should be exercised cautiously, with particular emphasis in this case on the claimant’s ability to repay in the event that her claim to set aside the marriage agreement fails at trial. His position is that, with this in mind, the current level of support of $2,500 per month is appropriate and perfectly adequate to meet the claimant’s financial requirements on an interim basis.
[172] Drawing on the authorities, and placing particular emphasis on the instructive analysis of the Saskatchewan Court of Appeal in Evashenko v. Evashenko, 2011 SKCA 22, it is my view that an applicant is not required to demonstrate a strong prima facie case or a likelihood or probability of success of impeaching the marriage agreement. Those standards pose too high a bar to meet at the interim stage. Rather, the test is whether the preliminary evidence is sufficient to raise a substantial question about the enforceability of the impugned agreement. Stated another way but to the same evidentiary effect, the applicable threshold test is whether the evidence shows there is a reasonable prospect of success in impeaching the marriage agreement at trial.
[173] The evidence concerning the circumstances surrounding the execution of a marriage agreement and its contents, to the extent it has been developed on an interim application, is to be examined through the lens of Miglin v. Miglin, 2003 SCC 24 and Hartshorne v. Hartshorne, 2004 SCC 22.
(iv) Analysis
[174] My assessment of the evidence within the framework of the two steps of stage one of Miglin raises serious issues about the integrity of the parties’ marriage agreement. The claimant has presented evidence about her vulnerability and the power imbalance in the circumstances of the negotiation and execution of the agreement that has not been discredited on this application.
[175] I confess to having difficulty in accepting the claimant’s assertion that the fact that the marriage agreement was written in English, which is her second language, played a role in her lack of understanding of its far-reaching provisions. That said, her evidence is nonetheless suggestive of having potentially received perfunctory legal advice when she signed it at an appointment that had been pre-arranged for her by the respondent in close proximity to the wedding day. I find as an interim proposition that the claimant has shown a reasonable prospect of success of impeaching the marriage agreement on the first step of stage one of the Miglin analysis, due to circumstances that are suggestive of the exertion of pressure, power imbalance and other vulnerabilities that may have flawed its negotiation and execution.
FAIRLY negotiated agreements that remain fair and in compliance with statutory support objectives are entitled to respect. BUT homemade or unfairly negotiated agreements that involve pressure, non disclosure of income and assets and that unfairly operate because material changes occurred that the parties had not anticipated will be given less respect and are at risk to be modified or ignored.
