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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