Separation Agreements

Agreements Respecting Property

Spouses may enter into pre-nuptial, cohabitation and separation agreements respecting the division of their property upon separation or divorce.

Section 81 of the FLA provides that the entire property division regime is subject to an agreement between the parties that states otherwise. Section 92 allows spouses to enter into agreements defining family property and family debt, dividing family property and family debt equally or unequally, excluding family property and family debt and valuing family property and family debt. This allows the parties to enter into any agreement they wish with respect to division of property subject only to the limitations found in section 93.

Section 93 of the FLA lays out when a court may set aside or replace an agreement respecting property:

• Section 93(3) provides that the court may set aside or replace an agreement if any of the following exists:
  1. a spouse fails to disclose significant property or debts or other relevant information;
  2. a spouse takes improper advantage of the other spouse’s vulnerability including ignorance, need or distress;
  3. a spouse did not understand the nature or consequences of the agreement; or
  4. other circumstances that would cause all or part of the contract to be voidable under the common law.
• Section 93(4) provides that even if a factor in section 93(3) is present, the court may choose not to set aside or replace an agreement if it would make an order that is not substantially different than the terms set out in the agreement.
• Section 93(5) provides that if a factor from section 93(3) is not present, the court may choose to set aside or replace an agreement if enforcing the agreement would be significantly unfair considering the length of time that has passed since the agreement was made, the intention of the spouses to achieve certainty or the degree to which the spouses relied on the terms of the agreement.

Each of these sections apply to pre-nuptial agreements, cohabitation agreements and separation agreements.

Agreements Respecting Spousal Support

Spouses may enter into pre-nuptial, cohabitation and separation agreements respecting spousal support payable upon separation or divorce.

Section 163 of the FLA provides that spouses may enter into agreements about spousal support, including the circumstances under which support will change or end. A spousal support agreement may include how much support will be paid, for how long, and in what circumstances it may be changed. Spousal support agreements may not include a term which requires a spouse to abstain from sexual relations after separation.

The FLA provides for limitations with respect to the enforceability of spousal support agreements. Similar to section 93, section 164 provides as that the court may set aside or replace an agreement due to non-disclosure, a spouse taking advantage of the other’s vulnerability or ignorance, a spouse not understanding the agreement or other circumstances which would make the agreement void under the common law.

If a spousal support agreement is significantly unfair having regard to the length of time that has passed since the agreement was made, changes in the spouses’ circumstances since the agreement was made, the intention of the spouses to achieve certainty, the degree to which the spouses relied on the terms of the agreement, and the objectives of spousal support are not being met, the court may set aside the agreement.

Pursuant to section 173 of the FLA, child support is prioritized over spousal support. This means that on occasion, child support payable may reduce the amount of spousal support payable by the same spouse. If that is the case and child support is no longer payable by that spouse, the spousal a spousal support order or agreement may be varied to reflect this change.

Unlike agreements respecting property, spousal support agreements under the FLA may provide for a review of the support payable.

Agreements Respecting Children

Spouses may only enter into separation agreements respecting child support and parenting.

With respect to child support, the FLA and the Divorce Act presume that the amount payable pursuant to the Federal Child Support Guidelines applies. Section 150 of the FLA provides that an agreement respecting child support may provide for an amount that is different than the Federal Child Support Guidelines only if the court is satisfied that reasonable arrangements have been made for the support of the child, including through the division of the family property.

The single most important factor for spouses in making agreements and the court in reviewing agreements respecting parenting is the best interests of the child. Section 44 of the FLA allows parents to make agreements allocating parental responsibilities, parenting time, implementation of an agreement and dispute resolution pursuant to an agreement.

Pursuant to section 44(3) the court must set aside any agreement that is not in the best interests of the child. What is in the best interests of the child varies greatly from case to case. Each child is different and each family is different. Section 37 of the FLA provides that spouses ought to consider the best interests of considering the child’s needs and circumstances including:

• The child’s health and emotional well being;
• The child’s views unless it would be inappropriate to consider them;
• The nature of the relationships between the child and significant persons in the child’s life;
• The history of the child’s care;
• The child’s need for stability, given the child’s age and stage of development;
• The ability of each person who is a guardian or seeks guardianship of the child, or has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
• The impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
• Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
• The appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
• Any civil or criminal proceeding relevant tot he child’s safety, security or well-being.

If you are about to move in with someone and need a pre-nuptial agreement lawyer, or are ending your relationship and need a separation agreement lawyer, please contact us. We can provide assistance in explaining your rights and obligations with and without an agreement.