Vancouver Surrey Marriage Agreement Lawyers know that the new focus of the Family Law Act is on out of court resolutions of BC family law disputes. Vancouver Surrey Marriage Agreement Lawyers know fair agreements will be upheld and the procedure and substantive terms of the negotiation and creation of the agreement are crucial to ensure it operates fairly and accomplishes what both sides wanted. Our experienced Vancouver Surrey Marriage Agreement Lawyers warn homemade agreements are suspect and can lead to far greater expense later when parties dispute how it was made or whether it should bind them.
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Vancouver Surrey Marriage Agreement Lawyers
Legal Advice: Making Sure your Marriage Agreement is Final and Binding
Vancouver Surrey Marriage Agreement Lawyers warn those agreements, however, aren’t always as final and binding as the parties might want. This post focuses on some of the ingredients necessary to make those agreements binding and final in light of a recent British Columbia (BC) Supreme Court Judgment, J.A.F. v J.J.F., 2016 BCSC 300 (CanLii) [JAF].
The case provides a cautionary tale to clients and their Vancouver Surrey Marriage Agreement Lawyers.Vancouver Surrey Marriage Agreement Lawyers implore you not to cut corners when you negotiate a marriage or separation agreement. Hire the best lawyer to ensure the deal is fairly negotiated with full disclosure at the time it’s made not years later when you find out you were tricked or bargained away your rights foolishly when you were buffeted by the emotions of the separation.
What is a “Marriage Agreement”?
A marriage agreement may be any of three types:
- An agreement entered into before the marriage (i.e. before the spouse’s marital rights have been established) (ofter called a “pre-marital” or “pre-nuptial agreement”)
- An agreement entered into after or as a result of a contemplated separation / divorce (often called a “separation agreement”)
- A mix of the two
Vancouver Surrey Marriage Agreement Lawyers use the following terminology for this post:
- “Pre-Marriage Agreement” is the same as a “pre-nup”
- “Separation Agreement” is an agreement the parties enter into to finalize their separation or divorce
- “Marriage Agreement” is includes both of the above, or a mix of the two
In JAF, the agreement at issue was entered during the marriage. In describing that agreement, the court said the following:
[173] Although the agreement in question is styled as a “marriage agreement” rather than a “separation agreement”, in practical terms it is a hybrid. It contains elements of both a pre-nuptial marriage agreement and a separation agreement. While it is anticipatory in nature, it deals with what would have been existing, “vested” rights and obligations, such as existing joint property, and spousal support obligations. It deals with custody and parenting for their (existing) young child.
WHEN WILL THE COURT IGNORE A MARRIAGE AGREEMENT?
In JAF, the wife said that the agreement should be set-aside, and the husband said that it shouldn’t.
The test for setting aside a marriage agreement is simple, and comes from the well-known Supreme Court of Canada case Miglin v. Miglin, [2003] 1 SCR 303, 2003 SCC 24 (CanLII) (as a side-note, these considerations are almost identical to certain common-law tests for voiding a contract). In JAF, the court, at paras 177 – 179, says that:
- The circumstances in which the agreement was entered must be fair; and
- The agreement itself must be fair in light of the Divorce Act, RSC 1985, c 3.
[177] In the first stage, then, there are two inquiries: (1) the court must examine the “the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it.” (Miglin, para. 80.), and (2), if the court is satisfied that the conditions under which the agreement was negotiated are satisfactory it must examine the substance of the agreement, in order to determine the extent to which the agreement takes into account the factors and objectives listed in the DA, thereby reflecting an equitable sharing of the economic consequences of marriage and its breakdown.
[178] With respect to the first stage one inquiry, the court provided no definitive list of factors to be considered, but stated:
We simply state that the court should be alive to the conditions of the parties, including whether there were any circumstances of oppression, pressure, or other vulnerabilities, taking into account all of the circumstances, including those set out in s. 15.2(4)(a) and (b) [the length of time the spouses cohabited, and the functions performed by each spouse during cohabitation] and the conditions under which the negotiations were held, such as their duration and whether there was professional assistance.
[179] Issues of vulnerability and the role of legal counsel or availability of legal advice are clearly relevant. In respect of this first inquiry, the court summarizes as follows:
83 Where vulnerabilities are not present, or are effectively compensated by the presence of counsel or other professionals or both, or have not been taken advantage of, the court should consider the agreement as a genuine mutual desire to finalize the terms of the parties’ separation and as indicative of their substantive intentions. Accordingly, the court should be loathe to interfere. In contrast, where the power imbalance did vitiate the bargaining process, the agreement should not be read as expressing the parties’ notion of equitable sharing in their circumstances and the agreement will merit little weight.
Vancouver Surrey Marriage Agreement Lawyers Explain Case Refuses To Uphold Agreement
The marriage agreement in JAF was not upheld, because:
[201] I find that the mother was manipulated, misled and pressured into entering into the marriage agreement.
[202] As I have already stated, she was fundamentally misled about the need for and purpose of the agreement, in that she was told that it was needed in order to resolve the existing proceedings, when that was not true.
[203] I accept her evidence that she was maneuvered into having no meaningful legal advice. I accept her evidence that she (naively) accepted the father’s suggestion that, as they were reconciling, they did not need to pay two lawyers. She discharged Ms. Hickman, believing she did not need separate counsel. That might have been true if Ms. Perry’s only further role was to set aside the court orders and file notices of discontinuance. That was perhaps initially the case but not for long.
[204] The context is critical. Unlike the usual situation, in which the parties negotiate a separation agreement when their relationship is over, in this case the context was the opposite: they were seeking to reconcile. This has two consequences. First, in the usual case the parties are obviously in conflicting positions and some compromise is reached. Although circumstances vary, prima facie each party may be expected to be reasonably alert to their own vital interests. But here they were not in conflict. In fact during the period of alleged negotiations, they were continuing with counselling for purposes of saving the marriage. Second, as in the case of a pre-nuptial agreement, the agreement was conditional, or anticipatory. Optimistically, it would never mean anything. In my view, the circumstances induced complacency, naiveté and wishful thinking on the mother’s part.
[205] The mother says that she trusted the father, and I accept this. While she was capable of reading the drafts and could understand some though certainly not all of the provisions, her guard was down. She was focused on reconciling for the benefit of the family and in particular K. She was not focused on a possible future separation. I accept that as she told Mr. Chambers, she was not too concerned about the agreement. The evidence relating to the second meeting she had with Mr. Chambers demonstrates her lack of concern. She ought to have been concerned of course, but she was not. Conversely, in my view, the father was very alive to the practical realities of the situation. He knew that there was a high probability the reconciliation would not last. As he testified he had already been subjected to legal proceedings twice, and orders removing him from the home. He was focused on improving his position in the event of another separation. His concern was well founded. The separation occurred in just over two years from the making of the agreement.
[206] I accept that the father knowingly took advantage of the mother’s vulnerability. He drove the process for obtaining the marriage agreement. I accept her evidence that he encouraged her to simply get the agreement signed, as a necessary means to an end, when it was not, and that he applied pressure to achieve his purpose.
Independent Legal Advice for both parties is a (Nearly) Necessary Ingredient for Binding Agreements Warn Vancouver Surrey Marriage Agreement Lawyers
JAF continued:
[207] A useful description of what meaningful independent legal advice entails in the family law context is set out in the decision of Pitfield J. in Gurney v. Gurney, 2000 BCSC 6 (CanLII), 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), 1989 ABCA 241 (CanLII), 63 D.L.R. (4th) 111 (Alta. C.A.) are of assistance.
[208] The marriage agreement and the ILAs contain formidable boilerplate language. In the marriage agreement, each party acknowledges that they have each had independent legal advice, that they have full knowledge of the contents of the agreement, that they understand their rights and obligations, that the agreement is fair and reasonable, that there is no undue influence, duress, or coercion, and that they have each signed the agreement voluntarily. The agreement contains a similar provision specifically dealing with spousal support, whereby the parties acknowledge that “…the terms of this Agreement, reflects an equitable sharing for support in their marriage relationship or upon a breakdown of their relationship.” As I will describe, it does not in my view do so. The ILAs signed by the witnessing lawyers are also full of reassuring statements. The pattern is carried forward into the “Notice of Separation.” In some cases these sorts of acknowledgments and assurances in an agreement would deserve to be given great weight. However, in this case they cannot be taken literally and I place little weight on them.
[209] While the father had ample legal advice, and together with counsel came up with a strategy for obtaining the marriage agreement, the mother had little meaningful legal advice. As noted she had no counsel during the negotiating process. She did not understand the true purpose of the agreement. The independent legal advice she received was inadequate. All Mr. Chambers did on the first meeting was to point out various weakness and information gaps, and advise her that he could not advise her as to fairness of the agreement. On the second meeting she provided him with no more information and was uninterested in further advice. It is possible to fault her for this. Had she been more focused on protecting her interests she would have had her own counsel throughout. She could have demanded more information. But she did not.
The court in JAF also found that the agreement’s provisions were substantially unfair:
[210] I would give the spousal support provisions of the marriage agreement no weight on the basis of the circumstance of execution alone. The substance of the agreement reinforces this conclusion.
Vancouver Surrey Marriage Agreement Lawyers at Western Canada’s Largest Family Law Firm Can Guide You To A Successful Resolution
Our separation and divorce lawyers handle hundreds of cases involving negotiated separation agreements, the Divorce Act, and making sure that those agreements are binding and cannot be avoided. Our separation and divorce lawyers act for parents and spouses to ensure that their rights are protected and their separation is final, and on their terms. Audra Bayer of MacLean Family Law also practices collaborative divorce, which helps ensure that you and your family reach a healthy resolution.
Our separation and divorce lawyers are here to help you move forward with your life in a final, determinative, and healthy way, while making sure that your rights are protected.
