Looking at variations of
the separatica agreement

MOST PEOPLE enter into
separation agreements to
finalize financial! matters
-with a former spouse and to
avoid the cests of taking the
matter to court. Recent case
law suggests that reliance
upon the terms of a separa-
tion agreement may be
dangerous.

Family
Afiairse

KIRSTIE
MACLISE

_In one recent case appealed to
the British Columbia Court of
Appeal; a former wife who had
Signed a settlement agreement was
awarded an additional $40,000.
She was also given interest on that
amount (at the market rate} from
the date of the trial judgment tc
the daie of the appeal judgment.

In. that. case the husband and
wife had entered into a settlement
agreement just before a trial was
to take place determining
Maintenance obligations and
property division. Under the

“agreement the wife received a
$100,000 cash settlement in ex-
change for releasing her interest in
the matrimonial home and her
claim for maintenance. Both the
husband and wife were repre-
sented by lawyers.

The court made the additional
award because it decided that the
agreement was unfair. It said that
it was obvious that the $100,000
cash the wife received could not
possibly provide a decent standard

of living for her for the rest of her
life.

Rather than awarding an addi-
tional Jump sum payment plus in-
terest, it appears trom other cases
that the court may also vary
Separation agreements. A spouse
who gave up assets under a
separation agreement, and receiv-
ed payment for those assets, may
get a one-half interest in the pres-
ent value of the assets if for some
reason the court feels the agrec-
meni is unfair.

For example, if ene spouse gave
up an interest in the matrimonial
home. in return for a sum of
money, and then wes able to ob-
tain a variation of the separation
agreement, the court could award
a one-half interest in the increased
current value of that matrimonial
home to the spouse that gave ust
the interest under the separation
agreement.

This result could, of course,
have disastrous results for some-
one who has made plans based
upon the assumption that the
separation agreenient was valid
and final. It would normally mean
that the home would have to be
sold to pay the spouse making the
successful claim. Substitution of a
home in the same area may be fi-
nancially impossible at the later
date.

The Family Relations Act is the
provincial statute which allows a
court to vary a separation agree-
ment on the basis of fairness.

Firstly, it is not clear. exactly
when fairness may be assessed. It
appears that the court will lock at
the circumstances of the parties at
the date of the trial determining
the fairness of the agreement.
Therefore, the court can take into
account events that occurred
sometimes several years after the
agreement was signed, such as an
increase in the value of the prop-

erty of one of the parties, or the _ -

employment status of the spouse.
Secondly, the “yard stick’’ to
apply to determine fairness is not
always easy to determine. To
assess fairness the court looks at
the division of property that
would h:sve occurred had the pro-
visions of the statute been applied.
Unfortunately, in some cases, it
is difficult even for lawyers prac-

Libraries introduce
terminals to public

CHRISTMAS WILL be celebrated
in the North Vancouver District

libraries with music, seasonal
refreshments and a surprise pres-
ent to library patrons: public ac-
cess computer terminals.

The staff have had access to the
on-line computer catalogue for
some weeks, but this week the
library has introduced the termi-
nals to the public for the first
time.

Now the old microfiche readers
have been replaced by on-line
terminals for public use, and evers
member of the library will be able
to look up any ‘item in the cata-

logue, check its location, or place
a reserve. “

The computer also enables
patrons to check their borrowing
record to see -what books they
have out and which items they
have placed on hold.

All district libraries will be clos-
ed at noon on Tuesday, Dec. 24
and Tuesday, Dec. 31, and re-
open at their usual times on Fri-
day. Dec. 27 and Thursday, Jan.

The Lynn Valley branch will be
closed on Sunday, Dec. 22 and 29,
but will re-open on Sundays from
nocn to 5 p.m. in the new vear.

Free Gift Wrapping

Donations to the NV. Christmas

tising family law to assess what
that division would be. When this
problem is combined with the
problem of trying to deternzine
those events that may occur at
future dates (i.e. between the date
the agreement is signed and the
date a spouse takes the agreement
to court) it becomes an even more
difficult task.

Who of us is qualified to
forecast future employment op-
portunities, variation in the real
estate market, the fluctuations in
the stock market and generally be
able to predict the vagaries of the
economy? More importantly, how
does the individual guess what
may be fair in the mind of a par-
ticular judge years after the
agreement is negotiated?

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