Written agreements.

Parties can settle their family dispute through an agreement as provided for by section 6 of the Family Law Act:

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

(c) the agreement is filed with a court.

(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.

Explanation from the Ministry of Justice

Section 6 provides the general framework for agreements and emphasizes that agreements are a viable, independent and binding option for resolving any family law dispute. In addition to expanding the role of agreements in family law, the FLA simplifies and clarifies the rules respecting agreements.

An agreement may be verbal or written, unless specified. A “written agreement” is defined in s. 1 as a written and signed agreement. Some written agreements can be filed at a court registry so they can be enforced like a court order.

An agreement may only be set aside by a court, and replaced with an order, in certain circumstances, which are set out in other parts of the Act. There are different thresholds for overturning an agreement depending on the subject-matter. For example, an agreement about parenting arrangements may be set aside by the court at any time if the agreement is not, or is no longer, in the best interests of the child. On the other hand, a written agreement respecting property or spousal support that has been signed and witnessed may only be set aside under limited circumstances, such as where there was a lack of financial disclosure or one party took unfair advantage of the other.

There are additional rules respecting specific types of agreements in other parts of the Act:

        s. 44 [Agreements respecting parenting arrangements]

        s. 50 [Agreements respecting guardianship]

        s. 58 [Agreements respecting contact]

        s. 92 [Agreements respecting property division]

        s. 127 [Agreements respecting (pension) division]

        s. 148 [Agreements respecting child support]

        s. 163 [Agreements respecting spousal support]

This section carries over from the Family Relations Act the exception to general contract law that family law agreements are binding whether or not consideration is exchanged.

It allows that a minor, who is also a parent or spouse, may enter into agreements with regard to matters covered by the Family Law Act. The section eliminates the current need for the minor to seek consent of the Supreme Court. These changes were made to better reflect the case law.

Commentary

The emphasis on, and encouragement of, agreements respecting family law disputes is reflected by the fact that there are at least eight different sections, including this cover-all section dealing with family law agreements. The interest in promoting the finality of agreements is emphasized in some of these other sections which state that agreements governing property division (s. 93(5)) and spousal support (s. 164(5)) will not be interfered with (barring certain statutory exceptions) unless the agreements are significantly unfair. This raises the threshold from the “unfair” standard that governed agreements under the Family Relations Act.

With respect to varying agreements, section 7 reads as follows:

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.

Explanation from the Ministry of Justice

Section 7 makes clear that an agreement can be used to change a previously made agreement. It clarifies that, unless otherwise stated, the new agreement replaces only the terms changed, while the remainder of the agreement continues.

This clarification is especially important for agreements related to the care of children because parenting arrangements will need to change as children grow and change.

Section 214 enables a court to set aside, incorporate all or part of an agreement into an order.

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