Vancouver family lawyers know that parents must carefully consider family law settlements before agreeing to terms.
In February 2015, an “intactivist” Florida mother made headlines when she disappeared with her son because Florida courts ordered that she agree to circumcise her son. “Intactivists” believe that circumcision is medically unnecessary and urge doctors not to perform the surgery and the public not to obtain the surgery for boys. They liken it to female circumcision.
According to reports, in late February, the mother took her son and checked into a domestic violence crisis shelter. 4 months later the mother was arrested and held in custody for a little more than a week. She was only released once she agreed to sign a consent form allowing the circumcision.
Importantly, in 2012 when the child was 1 year old, the mother separated from the child’s father. At the time of their separation, the mother agreed that the circumcision would be done. Her agreement was documented in a parenting plan and registered with the Florida courts. Reports are that at some point after agreeing to the circumcision, the mother changed her mind.
Therein lies the problem.
A British Columbia mother who agreed to this term might not be necessarily held to it, however, under the Family Law Act, she would likely need to show either that the agreement is not in the best interests of the child, or a change in the needs or circumstances of the child since the agreement.
Specifically, with respect to agreements respecting parenting arrangements, the FLA provides:
Agreements respecting parenting arrangements
44 (3) A written agreement respecting parenting arrangements that is filed in the court is enforceable under this Act as if it were an order of the court.
(4) On application by a party, the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child.
Changing, suspending or terminating orders respecting parenting arrangements
47 On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.
Therefore, if the court is of the opinion that the agreement is in the best interests of the child, and there has been no change in circumstances, the agreement is enforceable. A change in circumstances is also presumptively necessary to change an agreement or order respecting spousal or child support.
Where children are involved, it is nearly impossible to enter into a fully binding separation and/or settlement agreement. By their nature, settlement agreements respecting parenting arrangements and child support are always changing because the children who are their subjects are always changing and growing. The purpose of requiring the parties to show a change in circumstances is to try to limit what the parties can change their minds about to things that they should not or could not have anticipated. It stops parties from re-litigating old issues.
If you would like more information about separation agreements and parenting arrangements, contact us for a one hour free consultation. Be sure you know the consequences. Don’t just sign an agreement and hope for the best.