Is a Mediated Agreement Legally Binding in BC?

You have just come out of mediation with a signed memorandum or settlement, and you may be wondering whether it actually holds. The answer depends on what the agreement covers and on whether it has been filed in court.

This article explains in plain terms how the Family Law Act treats agreements reached through mediation, what the extra steps are, and where a court can still step in. It is general information, not advice on your situation.

This article covers the law of British Columbia.

What makes an agreement binding

The Family Law Act lets two or more people make an agreement about a family law dispute, and says such an agreement is binding on the parties, subject to the Act. The Act also sets further conditions for particular kinds of agreements, so the subject matter matters.

The Act defines a written agreement as one that is in writing and signed by all parties. A mediation memorandum that everyone has signed is therefore a good starting point, but check whether it was meant to be final or only a summary of what you plan to put into a formal agreement.

Different rules for different subjects

If you made the agreement before you were about to separate, parts of it about children may not bind you in the same way. A lawyer can confirm how this applies to your dates.

Filing it so it can be enforced

A written parenting agreement that is filed in court is enforceable as if it were a court order. A filed written child support agreement is enforceable the same way, including under the Family Maintenance Enforcement Act. A filed written spousal support agreement is also enforceable that way.

In the Supreme Court, you file a written agreement by attaching it to a requisition in Form F17.1, and the court may then enforce it on application under Part 10. A court may also incorporate all or part of a written agreement into an order, and if a later order differs from the agreement, the order replaces the part that provides differently.

When a court can still change it

• For parenting arrangements, the court must set aside or replace all or part of the agreement if it is satisfied the agreement is not in the child's best interests.
• For child support, a court may depart from the guideline amount if you consent or have an agreement and it is satisfied reasonable arrangements have been made for the child.
• For witnessed property agreements, the court may act if a spouse failed to disclose significant property or debts, took improper advantage of the other's vulnerability, or did not understand the agreement, among other grounds.
• A later agreement that changes an earlier one revokes only the changed parts; the rest stays in effect.

Who can mediate and what happens along the way

Only a mediator qualified as a family dispute resolution professional may conduct a mediation in a family law dispute. A mediator qualifies by being a member in good standing of the Law Society of British Columbia and meeting its training and practice requirements, or by meeting other listed qualifications, which include at least 14 hours of family violence training.

A family dispute resolution professional you consult must assess whether family violence may be present. If it may be, the professional must consider how far it affects the safety of you or a family member and your ability to negotiate a fair agreement. The professional must also tell you that agreements about guardianship, parenting arrangements and contact with a child must be made in the best interests of the child only.

• Family justice counsellors help people reach agreements on guardianship, parenting arrangements, contact, and child and spousal support, but they do not provide legal advice.
• Family justice counsellor services are free, and you do not have to start the court process to use them.
• In the Supreme Court, parties who all agree on mediation and a mediator can skip the formal Notice to Mediate (Family).
• Under that Notice to Mediate process, mediator fees are generally split equally unless the parties agree otherwise.

What to do next

• Confirm every party signed and that the document says what you agreed.
• Check whether the memorandum is final or needs a formal agreement drafted.
• Ask a lawyer whether to have signatures witnessed, especially for property and spousal support.
• Decide whether to file the agreement, or turn it into a consent order.
• Keep copies of the financial information exchanged during mediation.

Frequently asked questions