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BC Parental Alienation Estrangement Lawyers

The award winning lawyers at Maclean Family Law regularly deal with Vancouver BC Setting Aside Separation Agreements disputes. So, what are the rules for Vancouver BC Setting Aside Separation Agreements?

Our new Family law Act sets a higher threshold for setting aside BC separation agreements. The Family Relations Act property division provisions were criticized by family lawyers for setting the threshold for review too low and providing courts’ with too much discretion to change agreements dividing property.

The current act was designed to create more certainty. Even so, there needs to be a mechanism to prevent abuse and significant unfairness related to Vancouver BC Setting Aside Separation Agreements cases.

Vancouver BC Setting Aside Separation Agreements 604-602-9000

The BC Family Law Act (“FLA”) has a section dedicated to how a BC Court should deal with the thorny issue of Vancouver BC Setting Aside Separation Agreements. The FLA places a new found emphasis on parties using out of court processes to settle their:

  1. family property;
  2. excluded property; and
  3. family debt disagreement.

Vancouver BC Setting Aside Separation Agreements

Section 93 of the Family Law Act provides the basis on which all or part of a property agreement may be set aside, using a two part approach:

Step 1: Determine if the agreement was procedurally fair at the time it was made, based on the criteria in section 93(3) Here is how it works and a court will analyze the following factors:

  • a spouse failed to disclose significant property or debts or other information relevant to the negotiation of the agreement
  • the court is to set it aside and make an order dividing property, unless the order that it would make would substantially the same as the agreement.
  • a spouse took improper advantage of the other spouse’s vulnerability including the other spouse’s ignorance, need or distress; or a spouse did not understand the nature or consequences of the agreement
  • other circumstances that would, under the common law, cause a contract to be voidable in whole or in part, including fraud, duress, unconscionability and lack of independent legal advice.

Step 2: But after step 1 it isn’t over yet because a court may still set aside the agreement even if negotiated fairly and replace it with an order dividing property if the substance of the agreement is “significantly unfair” having regard to the limited criteria set out in section 93(5) which states:

    • (a)the length of time that has passed since the agreement was made;
    • (b)the intention of the spouses, in making the agreement, to achieve certainty;
  • (c)the degree to which the spouses relied on the terms of the agreement.

Section 94 prevents a court from making an order respecting the division of property or debt that is already dealt with by an agreement unless it first sets aside part or all of the agreement in accordance with section 93.

Vancouver BC Setting Aside Separation Agreements – Interim Advances To Challenge Agreements

So what happens to a spouse who has a Vancouver BC Setting Aside Separation Agreements case? How do they pay for it if they are left in a financially weaker position after signing an agreement they say is invalid or significantly unfair?

Bartch v Bartch from our BC Court of Appeal says interim advances for legal fees and expert reports can still occur after a Vancouver Bc Separation agreement is signed. Here is a tight summary of the law on interim advances from one spouse to the financially weaker spouse even after an agreement has been executed:

The order appealed in family law litigation required the appellant wife to make an interim distribution of property to the respondent husband pursuant to s. 89 of the Family Law Act. The appellant contends that s. 88 of the Act precludes the order because the parties had made a “final agreement” respecting the division of property. The respondent says no error was made because the agreement was neither “final” nor enforceable.

Held: appeal dismissed. Section 88 does not preclude an order under s. 89 where there is a genuine contest as to the finality of an agreement. Section 89 requires a consideration of both harm and necessity. Where there is a genuinely contested final agreement, the applicant must also establish a prima facie case of sufficient merit to warrant pursuit to attenuate the risk of harm to the respondent. As to the application of s. 89, the amount ordered should have been restricted to what was needed to fund the family dispute resolution. The order also did not require a term specifying how the money had to be spent because the applicant, in making the application, implicitly committed to using the funds for a purpose listed in s. 89. Given other orders made in this litigation and that the appellant is not asking for the adjustment of the interim distribution, the appeal is dismissed.

Vancouver BC Setting Aside Separation Agreements cases are tricky. Come see us today at our offices in Vancouver, Surrey, Kelowna, Richmond and Fort St John BC or Calgary Alberta.