Fair Vancouver separation agreements are encouraged in BC but Vancouver and other Canadian Courts have routinely set aside Vancouver Unconscionable Separation Agreements. Our Vancouver Unconscionable Separation Agreements lawyers like the New York Court of Appeals decision in Christain on what unconscionable means in the context of Vancouver separation agreements which states:
..an unconscionable bargain has been regarded as one ‘such as no [person] in his [or her] senses and not under delusion would make on the one hand and that no honest and fair [person] would accept on the other’ . . . the inequality being ‘so strong and manifest as to shock the conscience and con- found the judgment of any [person] of common sense.
Contact our Vancouver Unconscionable Separation Agreements team now. We have offices in Vancouver, Kelowna, Surrey, Richmond and Fort St John. Our new Calgary office is now open for business. Family law clients often rush to settle, are overwhelmed and do not get full disclosure and think they can trust their spouse to be fair. Sadly, these misperceptions often lead to a huge mistake.
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Vancouver Unconscionable Separation Agreements
The Vancouver unconscionable separation agreements decision from our BC Supreme Court in the case of N.P.T. v. L.M.E.D rejected a claim by a spouse for setting aside a separation agreement based on it being unconscionable. The focus in cases involving Vancouver Unconscionable Separation Agreements is on how the agreement was negotiated at the time it was signed. If dirty tricks are involved during negotiations between spouses you can expect the court to take action in a Vancouver Unconscionable Separation Agreements dispute. Contact us before you sign the separation agreement to ensure it is fairly negotiated. Here is what the judge said in NPT:
[147] The first position of the wife is that the agreement should be set aside in its entirety for unconscionability. As noted, that remedy is impractical, as the wife has taken the benefit of some parts of the agreement, in that she received the home and cash. These were important terms for her at the time. She does not propose undoing that.
[148] She also does not seek to undo the parenting aspects of the agreement that she has relied upon and continues to rely on at this trial. She relied upon the parenting aspects of the agreement by filing it in the Provincial Court at about the same time as these proceedings were commenced, in order to render them enforceable as an order of the court. She continues to rely on them at trial, in that she argues that the husband agreed to allow primary residency of the children with her in 2012 despite her known and severe alcoholism.
[149] The leading decision in relation to setting aside a separation agreement for unconscionability is Rick v. Brandsema, 2009 SCC 10.
[150] I adopt my comments as to the application of common law principles including unconscionability set out in my recent decision in J.A.F. v. J.J.F., 2016 BCSC 300, at paras. 161-162, where I quoted at length from the decision of Madam Justice Wedge in Akkor v. Roulston, 2009 BCSC 258 (CanLII).
[151] There, Wedge J. provided the following convenient summary of Rick:
127 Since the time of this hearing, the Supreme Court of Canada issued its judgment in Rick v. Brandsema, 2009 SCC 10 (CanLII). That decision clarifies the general principle that spouses have a “duty to make full and honest disclosure of all relevant financial information” when negotiating separation agreements: Rick at para. 47. Madam Justice Abella explained the underlying rational of this duty at para. 48:
Such a duty in matrimonial negotiations anchors the ability of separating spouses to genuinely decide for themselves what constitutes an acceptable bargain. It also helps protect the possibility of finality in agreements. An agreement based on full and honest disclosure is an agreement that, prima facie, is based on the informed consent of both parties. It is, as a result, an agreement that courts are more likely to respect. Where, on the other hand, an agreement is based on misinformation, it cannot be said to be a true bargain which is entitled to judicial deference.
128 At para. 49, Abella J. went on to outline the factors a court will consider in deciding whether it is appropriate to intervene in a situation where a separation agreement has been negotiated on the basis of misinformation:
(i) the extent of the defective disclosure;
(ii) the deliberateness of the non-disclosure; and
(iii) the extent to which the negotiated terms differ from the goals of the relevant legislation.
129 As noted by Abella J. at para. 51, “[i]n British Columbia, the operative legislative presumption for the division of family assets is an equal division, as set out in s. 56 of the [FRA]”. Pursuant to s. 65 of the FRA, a court may order an unequal division of family assets in situations where an equal division would prove unfair.
130 In Rick, a married couple entered a separation agreement with the stated mutual intention of dividing their assets equally. However, the husband undermined the negotiation process by writing a hidden cheque to himself from the couple’s joint bank account, covertly transferring funds to his brother-in-law, deliberately undervaluing assets and exaggerating debts, and purposely preying on his wife’s mental and emotional fragility. Consequently, the separation agreement departed significantly both from the objectives of the FRA and the intentions of the parties; the wife received approximately $650,000 less under the separation agreement than she would have otherwise been entitled to under an equal division of the couple’s property. The Court concluded that the combination of the misleading financial information and the husband’s psychologically exploitive conduct amply supported the trial judge’s decision to render the agreement unconscionable and unenforceable.
[152] As I will explain in more detail below, bearing in mind the factors set out in Rick, at para. 49, summarized above, in my view the agreement cannot be set aside as unconscionable. There was no misrepresentation. There were no non-disclosed assets. There was no vulnerability or power imbalance that was taken advantage of. The negotiated terms do not differ substantially from the goals of the relevant legislation.
If you are involved in a Vancouver Unconscionable Separation Agreements dispute pick up the phone now. Better yet why not hire us before you negotiate and sign a Vancouver separation agreement so we can help you avoid the cost and hassle Vancouver Unconscionable Separation Agreements fights.
Our Vancouver Unconscionable Separation Agreements team can be reached at 1-877-602-9900.
