Family Law Agreements

Oct. 5

What Are the Types of Family Law Agreements?

Family law lawyers use different types of agreements to resolve family law matters including:

1) Cohabitation Agreements – used by parties who intend to live together in a marriage-like relationship but do not intend to marry.

2) Marriage Agreements – used by parties who intend to marry each other.

3) Separation Agreements – used by parties to determine a division of assets, benefits, liabilities, debt, and to set out support obligations.

4) Parenting Plans – used by parties who have separated or about to separate and who want a comprehensive agreement on division of parental responsibilities and parenting schedules in order to prevent future disputes and to help facilitate smooth exchanges between parents in a co-parenting relationship.

Here’s what the BC Family Law Act says about family law agreements:

Agreements respecting family law disputes generally

6(1) Subject to this Act, 2 or more persons may make an agreement

(a) to resolve a family law dispute, or

(b) respecting

(i) a matter that may be the subject of a family law dispute in the future,

(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or

(iii) the implementation of an agreement or order.

(2) A single agreement may be made respecting one or more matters.

(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.

(4) Subsection (3) applies whether or not

(a) there is consideration,

(b) the agreement has been made with the involvement of a family dispute resolution professional, or

(5) A child who is a parent or spouse may enter into and be bound by an agreement, including an agreement respecting the division of property or debt.

Amending or Replacing Agreements

Agreements can be changed or amended. Section 7 of the Family Law Act states:

Replacing agreements

7 If an agreement changes a previous agreement,

(a) each part of the previous agreement that is changed is deemed to have been revoked, and

(b) the remainder of the previous agreement, if any, remains effective

Agreements on Parenting

Parties who have separated or about to separate can make an agreement on parental responsibilities and parenting time, to provide clarity and to help prevent future disputes on these issues. Section 44 of the Family Law Act states that:

Agreements respecting parenting arrangements

44(1) Two or more of a child's guardians may make an agreement respecting one or more of the following:

(a) the allocation of parental responsibilities;

(b) parenting time;

(d) the means for resolving disputes respecting an agreement made under this section.

(2) An agreement respecting parenting arrangements is binding only if the agreement is made

(a) after separation, or

(b) when the parties are about to separate, for the purpose of being effective on separation.

(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.

A person who is not a child’s guardian may also make an agreement with respect to contact with a child. Section 58 of the Family Law Act describes this arrangement:

Agreements respecting contact

58(1) A child's guardian and a person who is not a child's guardian may make an agreement respecting contact with a child, including describing the terms and form of contact.

(2) An agreement respecting contact with a child is binding only if the agreement is made between all of a child's guardians having parental responsibility for making decisions respecting with whom the child may associate.

(3) A written agreement respecting contact with a child 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 contact with a child if satisfied that the agreement is not in the best interests of the child.

Agreements for Property Division

In addition to agreements on parenting arrangements, parties can enter into agreements that deal with property division. This is covered under Section 92 of the Family Law Act:

Agreements respecting property division

92 Despite any provision of this Part but subject to section 93 [setting aside agreements respecting property division], spouses may make agreements respecting the division of property and debt, including agreements to do one or more of the following:

(a) divide family property or family debt, or both, and do so equally or unequally;

(b) include as family property or family debt items of property or debt that would not otherwise be included;

(d) value family property or family debt differently than it would be valued under section 87 [valuing family property and family debt].

In order to set aside an agreement respecting property division, Section 93 of the Family Law Act would apply:

Setting aside agreements respecting property division

93(1) This section applies if spouses have a written agreement respecting division of property and debt, with the signature of each spouse witnessed by at least one other person.

(2) For the purposes of subsection (1), the same person may witness each signature.

(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part 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 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 spouse's ignorance, need or distress;

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

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

(5) Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part 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) the intention of the spouses, in making the agreement, to achieve certainty;

(6) Despite subsection (1), the Supreme 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.

Agreements for Division of Benefits

In addition to division of property, parties may have benefits that also need to be divided. Section 127 of the Family Law Act states that:

Agreements respecting division of benefits

127(1) Despite any provision of this Part but subject to section 93 [setting aside agreements respecting property division], spouses may make a written agreement respecting the division of benefits under a plan, including a written agreement doing one or more the following:

(a) determining the spouse's proportionate share of benefits in a manner that would leave the member with less than half, or none, of the member's benefits;

(b) providing for the satisfaction of all or part of the spouse's interest in the benefits by the member providing compensation to the spouse.

(2) An agreement may provide that, despite the Canada Pension Plan, unadjusted pensionable earnings under that Act will not be divided between the spouses.

Agreement or order required for division of benefits

134 An administrator may administer the division of a member's benefits under this Part only if the administrator has first received a copy of an agreement or order respecting the division of benefits between the member and the member's spouse.

Agreements on Child Support

After separation or divorce, parties can make agreements on child support. Section 148 of the Family Law Act states that:

Agreements respecting child support

148(1) An agreement respecting child support is binding only if the agreement is made

(a) after separation, or

(b) when the parties are about to separate, for the purpose of being effective on separation.

(2) A written agreement respecting child support that is filed in the court is enforceable under this Act and the Family Maintenance Enforcement Act as if it were an order of the court.

(3) On application by a party, the court may set aside or replace with an order made under this Division all or part of an agreement respecting child support if the court would make a different order on consideration of the matters set out in section 150 [determining child support].

Agreements on Spousal Support

After separation or divorce, parties can make agreements on spousal support. Section 163 of the Family Law Act, states that:

Agreements respecting spousal support

163(1) An agreement respecting spousal support may provide for the circumstances under which spousal support will change or end, including if a spouse lives with another person or enters a relationship with another spouse, but a condition of spousal support that the spouse abstain from sexual relations after separation is not binding.

(2) Despite section 160 [duty to provide support for entitled spouse], in making an agreement respecting spousal support, a spouse may agree to release the other spouse from liability for spousal support.

(3) A written agreement respecting spousal support that is filed in the court is enforceable under this Act and the Family Maintenance Enforcement Act as if it were an order of the court.

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.

(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;

(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.

(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;

(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.

There are many ways that family law disputes can be settled outside of court, including drafting, preparing, finalizing and executing an agreement or agreements on parenting, property division, debt division, benefits division, child support and spousal support. To find out the best way to settle your family law matter outside of court, reach out to one of our experienced family law lawyers for a consult.

Want to learn more? Please contact our team of Vancouver family lawyers for a consultation.

The material provided in this blog is for general information and education purposes only and does not contain, and should not be construed as containing, legal advice applicable to a particular set of facts. If you require legal advice, please contact us for a consultation.

Abby Pang

Abby is a lawyer and loving mother of two children. She is an advocate for healthy families and children. She has turned her energy towards supporting families, by providing guidance and helping families navigate through the legal system, while empowering them to have a voice throughout the process.

Abby Pang’s journey began in Prince Albert, Saskatchewan. Subsequently, her family moved to the east side of Vancouver, before moving to Richmond, where she spent most of her childhood. Her father was a refugee who came to Canada in 1970, and from him she learned the meaning of grit.

In her youth, Abby experienced a breakdown in her family unit which resulted in divorce. She understands that marital breakdowns and divorces can be complicated, but also devastating. She also understands there are alternative options and ways to mitigate the damaging effects of the process.

Abby earned a bachelor’s degree from the University of British Columbia, studying psychology and family studies. She earned a law degree from Manchester Metropolitan University, exchange program through the Hong Kong University. In 2008, she returned to British Columbia to work in a large law office while completing her National Certificate of Accreditation. She then completed her articles in a boutique law firm in Vancouver. She was called to the British Columbia bar in 2012.

Abby has appeared in Provincial Court, Supreme Court and Court of Appeal. She deals with personal injury claims, sexual assault (civil) claims, and family law matters: Jansson v. Malone, 2021; Binning v. Kandola, 2021; Bergeron v. Malloy, 2020; Urwin v. Hanson, 2019; Lally v. He, 2016; Kandola v. Mactavish, 2016; Kweon v. Roy, 2016; Chan v. Caer, 2014; Saadati v. Moorhead, 2015; Loft v. Nat, 2015. In addition to her court experience, Abby takes a “family first” approach and is resolution-focused. She is registered through the International Academy of Collaborative Professionals.

As a lawyer, Abby Pang’s community involvement included volunteer work with the Federation of Asian Canadian Lawyers and the Canadian Bar Association Women Lawyers’ Forum. As well, she had the opportunity to assist at Rise Women’s Legal Center and Battered Women’s Support Services through volunteering with Amici Curiae Friends of Court.

Abby is the recipient of A Woman of Worth Leader of the Year Award 2023 for her outstanding achievements in strengthening her community/organization through innovative approaches to resolving challenges and inspiring meaningful change. She has been recognized nationally as a nominee of the YWCA Women of Distinction Awards 2023, which honours extraordinary women leaders and businesses.

In her personal time, Abby enjoys snowboarding, bike riding, and spending time with her family.

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