Depending on the circumstances, these agreements may be referred to as separation agreements, divorce agreements, property agreements, minutes of settlement, or mediation (mediated) agreements. Parties may seek to avoid legal costs by opting to draft their own agreements or by using online agreement templates. While these options may provide short-term cost savings, parties expose themselves to future legal and financial risks if they do not seek independent legal advice.
Independent legal advice means that each party to a legal dispute has received legal advice from their own separate lawyer. Independent legal advice is important for any written agreement where the parties intend to be mutually bound by the terms of the agreement. This includes, but is not limited to, cohabitation agreement, prenuptial agreements, separation agreements, and even agreements following mediation sessions.
If parties intend to be bound by the terms of their negotiated agreement, there are specific family law considerations that must be contemplated for the agreement to be relied upon with enforcabiltiy. A certificate of independent legal advice included with the client and the lawyer’s signatures is central to enforcement. When present a certificate of independent legal advice signifies that parties were fully informed of their legal rights and obligations at the time the agreement was signed.
One needs to only ask how critical and detrimental would it be if one party backed out of their promises and commitments as set forth in an Agreement? What happens if both parties then back out of promises and commitments rendering the Agreement defunct and a time consuming endeavour that leaves the parties back at square one? Are there ramifications that now put the parties in a worse position than if the defunct agreement ever existed?
Clients should understand the immense reluctance for judges or justices in Alberta to alter terms of an Agreement, to either render part or all of the agreement defunct, and leave the parties to the Agreement with uncertainty and further legal discontent. Where at all possible the judicial review of an Agreement and the insertion of a decision that is counter intuitive to the terms of an Agreement with independent legal advice will be avoided.
When will courts overturn a family law agreement?
Canadian courts are hesitant to interfere with private contractual agreements between individuals. In the family law context, however, there are specific circumstances where courts are much more likely to overturn agreements, either in part or in full. The reason for this is because of the unique nature of the power relationship that often exists in an intimate partner relationship and because family law agreements must comply with specific family law legislative requirements.
The leading case of Miglin v Miglin, 2003 SCC 24, outlines a two-factor test that is employed by the courts when deciding whether to uphold a family law agreement. The first factor looks at "the circumstances of execution," including whether any oppression, pressure or other vulnerabilities existed at the time of the agreement and whether adequate financial disclosure was exchanged. Where there is evidence that a power imbalance existed between the parties during the bargaining process, the court may determine that the agreement does not adequately express the parties' interests. In these circumstances, the agreement may very well be determined to be unenforceable in part or in its entirety.
If the court is satisfied that the circumstances of the negotiated agreement are satisfactory, the second Miglin factor must be considered. The second factor examines "the substance of the agreement" to determine if the agreement between the parties satisfies the objectives of the applicable family law statutes and reflects an equitable sharing of the economic consequences of a relationship breakdown. If there are vulnerabilities acknowledged during the initial negotiation of the agreement, the court may perform a deeper analysis at this second stage of the test. If the court finds that the agreement is not in "substantial compliance" with the applicable family law legislation, the court may again very well determine that the Agreement is unenforceable in part or in its entirety.
The Importance of Independent Legal Advice
There are two reasons why obtaining independent legal advice is important. First, it is important for separated spouses to fully understand their legal rights and obligations following the breakdown of a relationship. A lawyer can provide advice on parenting, child support, and spousal support matters, as well as entitlement to property obtained prior to a relationship, during cohabitation, and after separation. A lawyer provides advice the cuts across legislation and important factors of consideration based on their legal knowledge and experience, as well as knowing for a client what is of utmost importance to them.
The second reason to obtain independent legal advice is to protect the validity of a family law agreement. A lawyer can protect against some of the vulnerabilities in the negotiation process as well as confirm whether the agreement satisfies the objective of the applicable family law legislation. When both parties have obtained legal advice and their respective legal counsel has signed the agreement, the court will be much less likely to alter the terms of this agreement. This provides immense peace of mind for a client, and protects clients against further unnecessary and cost litigation costs in the future. While there is cost for ensuring independent legal advice in cohabitation agreements, prenuptial agreements, separation agreements, agreements reached by way of mediation, it is essential to the legal process and finalilty of legal matters.
At Family Central Law Office LLP, you can rely on experienced family lawyers to provide sound legal advice on your family law matters. Please contact us today for a free consultation with our family lawyers on your matter by calling our office at 587-392-7970 or emailing info@familycentrallaw.com, or by clicking on our consultation page.
