Separation Agreement Lawyer Burnaby

Our family lawyers draft separation agreements, negotiate them with the other spouse’s lawyer, review drafts prepared by someone else, and give independent legal advice before signing. When one of the terms needs court enforcement, we also file the agreement. What follows covers how a BC separation agreement is put together so that it holds, and the points that come up for Burnaby households in particular.

What one agreement can cover

A separation agreement is a contract under the Family Law Act, and it binds the spouses whether or not a lawyer helped and whether or not it is ever filed (section 6). One document can settle several subjects, but each is governed by its own part of the Act:

• Property and debt (section 92): divide equally or unequally, include or leave out particular items, or agree on values. Pensions are dealt with under section 127. Background on our property division page.
• Parenting (section 44): parental responsibilities and parenting time. A parenting agreement is binding only if made after separation or when the parents are about to separate, and the court must set aside any part that is not in the child’s best interests. See co-parenting responsibilities.
• Child support (section 148): the same timing rule, and a court can replace the agreed amount if it would order something different under the Act. See child support.
• Spousal support (section 163): terms on when support changes or ends, or a release of support altogether. See spousal support.

An agreement cannot end a marriage. Only a court can grant a divorce under the federal Divorce Act, and the judge must be satisfied that reasonable arrangements have been made for the children’s support. Married clients who want the divorce itself should see our Burnaby divorce lawyers and the divorce page. Couples who have not separated and want terms in place in advance need premarital and cohabitation agreements instead.

Signing it so it holds

Under section 93, the Supreme Court can set aside or replace the property terms of a written agreement in two situations. One concerns how the agreement was made: a spouse hid significant property, debts or other relevant information; took improper advantage of the other’s vulnerability, “including the other spouse’s ignorance, need or distress”; or the other spouse did not understand the nature or consequences of the agreement. Ordinary contract grounds also apply. The other is that the agreement is significantly unfair, judged by how much time has passed, the spouses’ wish for certainty and how far they relied on it. Section 164 applies a similar test to spousal support terms.

Four practical steps reduce that risk:

1. Sign in writing, with each signature witnessed. Section 93 is framed around agreements signed in front of at least one witness (one person may witness both signatures). A court has discretion to treat an unwitnessed agreement the same way; do not count on it.
2. Exchange financial disclosure before signing. Section 5 obliges each party to a family law dispute to give the other “full and true information”. Document income, accounts, pensions, business interests, debts and anything one spouse says is excluded, such as an inheritance. Our article on settling without complete disclosure shows the risk.
3. Take separate advice. The Act does not require independent legal advice, and a certificate of advice does not by itself make an agreement safe from challenge; courts can look at whether the advice was real. See challenging an agreement after legal advice. A lawyer advising on a family law dispute must also screen for family violence and discuss the ways the dispute could be resolved (section 8).
4. Record the separation date and the values relied on. Unless the spouses agree otherwise, family property is valued at fair market value on the date of the dividing agreement. On disputed separation dates, see when spouses separate.

If you have already signed and believe the agreement should be set aside, section 198(3) gives two years from when the grounds were discovered, or reasonably should have been, to apply.

Deadlines that keep running

Negotiating does not stop the main limitation period. Under section 198(2), a claim to divide property, family debt or a pension, or for spousal support, must be started within two years of the divorce order (or a nullity order) for married spouses, and within two years of separation for unmarried spouses. Section 198(5) suspends the period only while the spouses are in family dispute resolution with a family dispute resolution professional (a lawyer advising a party, a family justice counsellor, a parenting coordinator, or a mediator or arbitrator who meets the regulations), or in a prescribed process. Talks between the spouses alone do not qualify. Keep a record of dates, and if talks stall, get advice on protecting the claim. More in how long you have to claim assets after separation.

A Burnaby home: title and wills

Protecting your interest on title

A spouse who is a party to a written property agreement, with each signature witnessed, can file a notice of agreement in the land title office (section 99). Once it is registered, the registrar will not register a transfer, mortgage, agreement for sale or lease of that land unless each spouse signs a cancellation or postponement notice. That matters where one spouse keeps the home and the buyout happens later.

Wills and beneficiary designations

Under section 56 of the Wills, Estates and Succession Act, a gift in a will to a spouse, the spouse’s appointment as executor or trustee, and a power of appointment given to the spouse are revoked if the two later cease to be spouses under section 2(2) of that Act, unless the will shows a contrary intention. For married spouses that happens when an event gives rise to an interest in family property, which is usually separation; for unmarried spouses, when either ends the relationship. A later reconciliation does not restore the gift. Section 56 deals with wills only. Beneficiary designations on life insurance, RRSPs, RRIFs, TFSAs and pensions are not revoked by it and stay in place until changed, subject to the plan, any irrevocable designation and the agreement itself, so review them when you sign. The agreement can also require life insurance as security for support. Our articles on a former spouse who still inherited and a life insurance promise in a separation agreement show what goes wrong, and our estate planning lawyers can update a will afterward.

Filing: what it does for each term, and where

Burnaby has no courthouse, so agreements are filed at a registry in a neighbouring city. Filing is optional, and it does not turn the whole agreement into a court order. What it changes depends on the term:

• Parenting, contact, child support and spousal support terms. Once a written agreement is filed in either court, these terms are enforceable as if they were an order (sections 44(3), 58(3), 148(2) and 163(3)). Filed support terms can also be enrolled with the BC Family Maintenance Agency, which collects and enforces support.
• Companion animal terms may also be filed in Provincial Court under its family rules; ask us what that achieves in your case.
• Property and debt terms. These bind the spouses as a contract, but there is no filing step that makes them enforceable as an order. If a spouse will not transfer the home or pay an agreed amount, the usual route is an application to the Supreme Court; some couples instead ask that court for a consent order in the agreement’s terms. A notice on title, above, can protect the home in the meantime.

In Provincial Court, the agreement is filed with a Request to File an Agreement (Form 26). If no case exists, the Provincial Court Family Rules point to the registry closest to the home where the child lives most of the time, or to the filing spouse’s home if no child-related issue is involved; an existing case stays in its registry. The nearby options are the New Westminster Law Courts at 651 Carnarvon Street, a few minutes’ walk from our office, and Robson Square in downtown Vancouver. As an illustration only, a family in Edmonds or Metrotown may find New Westminster is the closer registry, while one near Brentwood may find it is Robson Square. The rule does not say how “closest” is measured, so confirm with the registry before filing. In the Supreme Court, the agreement is attached to a requisition (Form F17.1), and filing it starts a case if none exists; the Supreme Court Family Rules do not assign a Burnaby address to New Westminster or to the Vancouver Law Courts, so confirm that choice too.

Free help nearby, and its limits

The New Westminster Family Justice Centre, at 204-88 10th Street, offers free help from family justice counsellors who can mediate parenting, guardianship, contact and support. Its published services do not cover dividing a home, pensions or a business, other than a companion animal. Some couples settle parenting there and use lawyers for property, support and independent advice before signing. We also act in family mediation and four-way settlement meetings.

Who you will work with

Judith A. Janzen, a principal lawyer called to the bar in 2000, leads our family law practice. Others on our team who work on separation agreements:

• Rupinder Shoker, associate counsel: separation and pre-nuptial agreements, four-way meetings, mediations and arbitrations.
• Rasjovan Dale, associate counsel: out-of-court settlements, mediation and separation agreements.
• Susan Kim, associate counsel in family law and estate litigation; also works in Korean.
• Katya Richardson, associate counsel, who offers limited-scope retainers.
• Mason Heller, associate lawyer: retroactive support after non-disclosure, excluded property claims.
• Shivleen Sidhu, associate lawyer in family law: mediation, arbitration and negotiation; fluent in Punjabi.

When an estate is part of the picture

Onyx also practises estate law, and the two areas meet when a spouse dies before an agreement is signed or carried out, a separated spouse is left out of a will, or an executor delays a transfer the agreement required. Our estate and trust litigation lawyers handle will disputes, challenges to an executor, claims by a disinherited child or spouse, undue influence and lack of capacity and the validity of a will or trust. Our probate and estate administration team acts for executors. To discuss an estate matter, contact our estate team.