How to Vary a Separation Agreement in British Columbia

Life rarely stays the same after separation. Incomes change, a child's needs shift, someone moves or remarries. You may be wondering whether the agreement you signed is stuck in place, or whether it can be updated.

In British Columbia the answer depends on which part of the agreement you mean and whether it has been turned into a court order. This article walks through the main routes.

This article covers the law of British Columbia.

How binding is a separation agreement?

A family law agreement is binding on the parties, subject to the Family Law Act, whether or not it was filed with a court. A court can also incorporate a written agreement into an order. That second point matters, because an order is changed through a different process than an agreement.

You cannot usually just ignore a term you no longer like. The practical question is which route fits: agreeing a change together, asking a court to change an order, or asking a court to set an agreement aside.

Changing it by agreement

The simplest route is for both of you to sign a new written agreement. A new agreement that changes a previous one revokes each changed part of the earlier agreement, and the unchanged remainder stays effective. That means you can amend only the terms that need updating.

Because the terms are meant to last, it is worth having each person get legal advice before signing, and being open about income and assets.

Different terms, different rules

Property and debt terms follow their own rules, and whether and how they can be reopened depends on the facts. A lawyer can tell you what applies to your agreement.

When a court gets involved

If your terms are now a court order, a court may change, suspend or terminate it when there has been a change in circumstances since it was made. The test differs by subject.

• Parenting arrangements: a change in the needs or circumstances of the child.
• Child support: a change in circumstances as provided for in the child support guidelines, or substantial new evidence unavailable earlier.
• Spousal support: a change in the condition, means, needs or other circumstances of either spouse, or substantial new evidence or later-discovered non-disclosure.

Some situations have their own rules. Contact orders for people who are not guardians, such as grandparents, are changed under section 60 of the Family Law Act, which uses the same test as section 47: a change in the needs or circumstances of the child. A prohibition on relocation is not, by itself, a change in circumstances for the purposes of section 47. Interim orders can be changed on proof of a change in circumstances or new substantial evidence.

If your order was made under the federal Divorce Act, variation is under section 17 of that Act rather than the Family Law Act. For parenting and contact orders the court must find a change in the circumstances of the child, and it cannot consider conduct that could not have been considered when the original order was made. A former spouse's terminal illness or critical condition counts as a change in the child's circumstances.

Under the Divorce Act, a non-spouse parent, a person standing in the place of a parent or a person intending to do so may apply to vary a parenting order, and a person who is not a spouse needs leave of the court if the order does not relate to them. Child support variation requires a change of circumstances as provided for in the applicable guidelines, and spousal support variation requires a change in the condition, means, needs or other circumstances of either former spouse.

Once a fixed-term or event-based spousal support order has ended, support can be resumed only if the applicant proves economic hardship and that the changed circumstances would likely have produced a different order. A Family Maintenance Enforcement Act proceeding is not itself a way to change support.

What to do next

• Find your signed agreement and any order that came from it.
• List what has changed, with dates and documents such as pay records.
• Decide which terms you want changed and whether the other person is likely to agree.
• If you are in Provincial Court, remember an application to change an order uses Form 3 with the matching schedule and a copy of the order or agreement attached.
• Book advice before signing anything or stopping payments.

Frequently asked questions