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Psychological Vulnerability in Separation Agreements

Psychological Vulnerability in Separation Agreements and how this impacts the enforceability or weight given to such agreements is a hot topic over the past several years. In today’s blog Peter Graburn reviews leading Canadian cases on Psychological Vulnerability in Separation Agreements and how courts may set aside agreements on this basis. Call our multi-award winning family lawyers today toll free at 1 877 602 9900to meet with us at any of our 7 offices across BC and in downtown Calgary.

Calgary Psychological Vulnerability in Separation Agreements 1 877 602 9900

COVID-19 has been hard on everyone: socially, physically, and psychologically. But some have been affected more than others. We heard early on about the most vulnerable: those with medical conditions, immuno-compromised, the elderly. Throughout the crisis, we have heard of the social effects of C-19, with reports of increased domestic violence and impacts on children, etc. Now, some 3 months later, we are hearing reports of the psychological impact of C-19, with increased rates of anxiety and depression being reported. But some people appear to be more vulnerable to the uncertainties and stresses of these situations than others.  The Courts have a term for this – Psychological Vulnerability. And nowhere in family law does this issue have a greater impact than in concluding agreements for the resolution of financial support and division of family property, ie. Separation Agreements.

How Are Separation Agreements Set Aside Or Varied? 1 877 602 9900

In a previous article, Calgary Cohabitation Prenup Agreement Lawyers,  we discussed some of the different types of family law agreements, and some of the grounds for challenging and possibly overturning these agreements, including:

  • lack of statutory requirements;
  • lack of financial disclosure or knowledge;
  • lack of reasonable independent legal advice;
  • unconscionability (such a bad deal as to constitute a fraud), and;
  • duress, undue influence, oppression, and psychological vulnerability.

Regarding this last ground, much attention is often paid during the preparation and signing of family law agreements to the issues of “duress, undue influence (and) oppression”. But little attention is often paid to the issue of psychological vulnerability of separating couples, perhaps at great risk to both parties (and their lawyers). Psychological Vulnerability in Separation Agreements is a big deal and lawyers and clients need to protect against any abuses in this area,

Vancouver Psychological Vulnerability in Separation Agreements 1 877 602 9900

 

Psychological Vulnerability in Separation Agreements
Peter Graburn Managing Associate at MacLean Law’s Calgary Office

The law on the issue(s) of “duress, undue influence, oppression, and psychological vulnerability” was set by two landmark Supreme Court of Canada cases (see: Miglin v. Miglin, 2003 SCC 24, and Rick v. Brandsema, 2009 SCC 10). Specifically, regarding psychological vulnerability, the Court has stated [see: Leopold v. Leopold, 2000 CanLii 22708 (Ontario Supreme Court) at para. 128]:

“[F]or parties negotiating a separation agreement, one party may have power and dominance financially, or may possess power through influence over children… The reality … is that often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other. The complex marital relationship is full of potential power imbalance. In a sense, vulnerability is implicit in the difficult emotional process of separation.”

But what is this ‘vulnerability’? While there is no specific legal definition, some of the vulnerabilities the Courts have recognized that may make entering into a family law agreement with some ex-spouses potentially unfair include:1 877 602 9900

  • emotional, physical or psychological abuse;
  • influence through dominance and oppression;
  • control over family finances;
  • influence over children’s allegiances;
  • access to or control over the release of financial information, and;
  • a spouse becoming sick or disabled after the signing of the Agreement.

So what are some of the sources of “psychological vulnerability” that may diminish an ex-partner’s judgment and ability to enter into family law agreements: age, language barriers, physical and mental disability, domestic violence, etc.? Isn’t everyone “vulnerable” to some extent, particularly during relationship breakdown? Maybe.

But the concern here is how these ‘vulnerabilities’ may be seen (ie. particularly by a Court after the fact) as effecting an ex-partner’s ability to enter into and sign a family law (ie. Prenuptial or Separation) agreement, and the enforceability of these agreements. How do you protect yourself from a claim by your ex-spouse that a signed family law agreement should not be upheld due to their “psychological vulnerabilities”: confirmation of full financial disclosure, enhanced Independent Legal Advice (ILA), counsellor or psychologist’s assessment, Consent Court Order confirming the Agreement? Possibly.

Protecting Against Psychological Vulnerability in Separation Agreements

Perhaps a more certain way of ensuring that a family law agreement is not overturned due to the emotional or “psychological vulnerabilities” of your ex-spouse is by ensuring that the agreement is fundamentally fair in the first place. In British Columbia, a Court can set aside or replace all or part of an Agreement where (among other things) “a spouse took improper advantage of the other spouse’s vulnerability” or “the agreement is significantly unfair” [Sections 93(3)&(5) of the Family Law Act].

So what can you do to try to ensure that family law agreements are not overturned due to the emotional and psychological vulnerabilities of an ex-spouse?  Do not take advantage of the vulnerabilities. Do not make a substantially unfair deal (even from a seemingly willing ex-partner). Make the agreement fair. As MacLean Law’s Kelowna Office Senior Lawyer Audra Bayer recently advised:

Word to the wise – ensure the agreements are fair (and comply with the applicable legislation).

Calgary Psychological Vulnerability Lawyers assist their clients to understand that family law agreements are under increasing scrutiny by the Courts and explain the many ways family law agreements can be both attacked by and protected from an emotionally or psychologically vulnerable ex-partner.