Setting Aside Spousal Support Agreement Waivers

Setting Aside Spousal Support Agreement Waivers is a complex area of law governed in BC by both The Federal Divorce Act and the Family Law Act. While agreements can be set aside under the FLA the test is a rather high bar. The time to think hard about the fairness of a spousal support waiver occurs at the time it is signed for procedural unfairness. The second part of the test if the agreement was negotiated fairly is how fairly does it operate upon separation. The shorter the marriage the more likely a support waiver will be upheld and conversely the longer the marriage the greater potential for it to be set aside if the parties didn’t accurately predict their future circumstances on breakdown. In today’s blog Top 25 Most Influential Canadian Lawyer Fraser MacLean gives you a brief overview of the two step process courts use when Setting Aside Spousal Support Agreement Waivers.

Given Canada and the provinces have adopted the SSAG, the SSAG may be similarly useful when applying the tests for setting aside spousal support agreements under provincial legislation and in determining the amount of spousal support if the agreement is set aside: see Ashton v. Ashton, 2015 BCSC 790 (mid-range SSAG awarded after separation agreement set aside under s. 164(5)(e) of the B.C. Family Law Act).

Setting Aside Spousal Support Agreement Waivers Tel: 604 602 9000

Section 164 of the Family Law Act sets out what a court should look at in cases where someone seeks spousal support after signing an agreement waiving it on divorce or relationship breakdown. If you are unmarried you need to use the Family Law Act not the Divorce Act if you are Setting Aside Spousal Support Agreement Waivers.

You Don’t Need To Prove A Material Change Since The Agreement Was Signed But It Is A Factor

MacLean Law’s UHNW Do you need to prove a material change to get support after signing a marriage agreement waiving it?

No, you do not need to prove material change in circumstance in order to change the agreement. Whether there has been a material change in circumstance is merely one of several factors listed at s. 164(5) FLA.

The language of s. 164(5) — and, in particular, the use of the phrase “on consideration of the following” before the enumeration of factors — signals that a material change of circumstance is not a necessary element of a finding of significant unfairness. This interpretation is supported by the recent case law: Goldstone at para. 48; Hinz v. Davey, 2022 BCCA 232 at para. 29; Reiner at para. 12; and Deboer v. Deboer, 2017 BCSC 735 at para. 14.

See our blog on a recent BC Court of Appeal case in Bradley v Callahan.

Setting aside agreements respecting spousal support

164 (1) This section applies if spouses have a written agreement respecting spousal support, with the signature of each spouse witnessed by at least one person.(2) For the purposes of subsection (1), the same person may witness each signature.

THESE SECTIONS DEAL WITH UNFAIRNESS WHEN AGREEMENT IS BEING NEGOTIATED AND SIGNED.

(3)On application by a spouse, the court may set aside or replace with an order made under this Division all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;(b) a spouse took improper advantage of the other spouse’s vulnerability, including the other party’s ignorance, need or distress;(c) a spouse did not understand the nature or consequences of the agreement;

(d) other circumstances that would under the common law cause all or part of a contract to be voidable.

(4) The court may decline to act under subsection (3) if, on consideration of all of the evidence, the court would not replace the agreement with an order that is substantially different from that set out in the agreement.

THESE SECTIONS DEAL WITH HOW FAIRLY AGREEMENT OPERATES AT BREAKDOWN OF RELATIONSHIP Tel: 604 602 9000

(5) Despite subsection (3), the court may set aside or replace with an order made under this Division all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:

(a) the length of time that has passed since the agreement was made;

(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;

(c) the intention of the spouses, in making the agreement, to achieve certainty;

(d) the degree to which the spouses relied on the terms of the agreement;

(e) the degree to which the agreement meets the objectives set out in section 161 [objectives of spousal support].

(6) Despite subsection (1), the court may apply this section to an unwitnessed written agreement if the court is satisfied it would be appropriate to do so in all of the circumstances.

FINALLY, IT IS IMPORTANT TO CONSULT WITH TOP FAMILY LAWYERS BEFORE YOU SIGN AN AGREEMENT TO ENSURE BOTH PROCEDURAL AND OPERATIONAL FAIRNESS. Tel: 604 602 9000