DIY or Printable Separation Agreements in BC: 7 Mistakes That Lead to Trouble

Many separating couples in BC start with a printable or online separation agreement. That is a reasonable choice: you know your own family, you want to keep cost and conflict down, and the Family Law Act encourages people to resolve things out of court.

What a template cannot do is know your finances, your children or what the Act expects of an agreement that will hold up later. Below are seven gaps that can cause trouble, the rule behind each one, and how to fix it before you sign.

What makes a BC separation agreement binding

Under section 6 of the Family Law Act, an agreement that resolves a family law dispute is binding on the parties, whether or not it is filed with a court. The words that matter are "subject to this Act": a court keeps the power to set aside or replace terms about property, spousal support, child support and parenting in specific situations. Our guide to separation agreements in BC and when they can be set aside covers the basics. Each of the seven gaps below can open that door.

1. Skipping full financial disclosure

The rule. Each party must give the other "full and true information" to resolve a family law dispute (FLA s 5). A court may set aside or replace a property or spousal support agreement if a spouse failed to disclose significant property, debts, income or other relevant information (ss 93(3)(a), 164(3)(a)).

The consequence. An agreement built on incomplete numbers is the one most exposed to challenge, sometimes years later.

The fix. Exchange documents before you negotiate: tax returns, pay records, bank, investment, RRSP and pension statements, mortgage and debt balances, and business records if either of you is self-employed. Our guide to financial disclosure in a BC separation lists what is usually needed. Record in the agreement what was exchanged.

2. Signing without a witness

The rule. The set-aside rules in sections 93 and 164 are written for agreements in which each spouse's signature is witnessed by at least one other person; the same person may witness both. For an unwitnessed agreement, the court decides whether to apply them at all (ss 93(6), 164(6)).

The consequence. Leaving out a witness hands more to the court's discretion and invites an argument about how the agreement should be treated.

The fix. Put it in writing, have each signature witnessed, and keep a signed original for each of you. Initialling every page helps show that nothing was changed later.

3. Signing without independent legal advice

The rule. The Act does not make legal advice a condition of a binding agreement. But a court may set aside or replace a property or spousal support agreement if a spouse did not understand its nature or consequences, or if one spouse took improper advantage of the other's vulnerability, including ignorance, need or distress (ss 93(3)(b) and (c), 164(3)(b) and (c)).

The consequence. When one person prepares the agreement and the other simply signs, those are the arguments most likely to be raised later.

The fix. Each of you has your own lawyer review the agreement before signing, and the agreement records that you did.

4. Setting child support without the guidelines

The rule. When a court makes a child support order, the amount must be determined under the child support guidelines (FLA s 150(1)). A child support agreement is binding only if made after separation, or when you are about to separate (s 148(1)), and a court may set it aside or replace it if, considering the guidelines and the other factors in section 150, it would make a different order (s 148(3)). A different amount can stand where the court is satisfied that reasonable arrangements have been made for the child (s 150(2)).

The consequence. A clause that waives child support, or picks a round number with no calculation behind it, is open to being replaced.

The fix. Work out the guideline amount from each parent's income, deal with special or extraordinary expenses, and say how support will be updated when incomes change. See how child support is calculated in BC.

5. Vague parenting terms

The rule. Agreements about guardianship, parenting arrangements and contact must consider the best interests of the child only (FLA s 37(1)). A parenting agreement is binding only if made after separation or when you are about to separate, and on application a court must set aside or replace any part that is not in the child's best interests (s 44(2) and (4)).

The consequence. "Reasonable parenting time as agreed" works until the day it does not, and vague terms are hard to follow or enforce.

The fix. Set out a regular schedule, holidays and special days, exchanges, travel, how decisions about school and health care are made, and a step such as mediation before anyone goes to court.

6. Saying who gets what, but not how

The rule. Spouses may agree to divide family property and debt equally or unequally, and to include or exclude particular items (FLA s 92). Pensions follow Part 6 of the Act: a plan administrator may divide benefits only after receiving a copy of an agreement or order (s 134).

The consequence. Many templates say who keeps the house or the pension without the steps that make it happen: refinancing, releasing a spouse from the mortgage, transferring title, the pension paperwork, and who pays which joint debts.

The fix. List each asset and debt, its value and valuation date, who keeps it, a deadline for each step, and what happens if a deadline is missed. If one of you is keeping the home, read buying out your spouse's share of the house and get advice on the transfer and any property transfer tax exemption for family transfers. Until title moves, a spouse who is a party to a property agreement may file a notice of it in the land title office (s 99), which generally stops the land being transferred or mortgaged while the notice is registered.

7. Not filing the agreement with the court

The rule. A written agreement about child support, spousal support or parenting arrangements that is filed in court is enforceable as if it were a court order (FLA ss 148(2), 163(3), 44(3)), and support terms can then be enforced under the Family Maintenance Enforcement Act.

The consequence. An unfiled agreement is still binding (s 6), but if payments stop or parenting time is withheld, you have an extra step before you can enforce it.

The fix. Once it is signed, file it in the Provincial Court or Supreme Court. The BC Family Maintenance Agency asks for a copy of the stamped, filed agreement when you enrol. Our guide to enforcing a separation agreement explains the options.

Watch the two-year limits

If something is left out, married spouses generally have two years from the divorce order, and unmarried spouses two years from separation, to start a claim for property division or spousal support (FLA s 198(2)). An application to set aside a property or spousal support agreement must generally be made within two years after the spouse discovered, or reasonably ought to have discovered, the grounds (s 198(3)).

Drafted your own agreement? Have it reviewed before you sign

Our family lawyers can review an agreement you have drafted yourself or started from a template, check the disclosure and signing formalities, point out gaps on property, support and parenting, and prepare what is needed to transfer property or file the agreement.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.