How to Get a Family Law Consent Order in BC and Why It’s the Best

How to Get a Family Law Consent Order in BC and Why It’s the Best

A family law consent Order in BC can resolve all or some of your marital issues once you separate from your spouse. It is generally much stronger than a separation agreement in BC. A family law consent Order can resolve child custody, child support, spousal support or property/debt division on an interim or final basis.  In many situations, a family law consent Order can only be changed by another Order of the Court or agreement by the parties.

Let’s first look at why a BC family law consent Order is better than a separation agreement:

A Family Law Consent Order is Better than a Separation Agreement

If you and your spouse agree on how to resolve all issues relating to your marriage or cohabitation, you have the option of entering into a consent Order or a separation agreement. Many spouses enter into family law separation agreements but those agreements will not protect you as much as a family law consent order does. This is because:

  • Separation Agreements are contracts which can be challenged or set aside for many reasons including:
    • Lack of independent legal advice;
    • Lack of proper disclosure;
    • Duress;
    • Mistake;
    • Mutual Recession; and
    • Significant unfairness.

In contrast, a family law consent Order, specially as it relates to property division, cannot be challenged at all based on the above noted grounds. It can only be challenged if you are able to show:

  •  fraud – i.e. you signature was forged; or
  • Misrepresentation; meaning your spouse lied to you and you can prove it in order to set aside the consent Order.

The BC Family Law Act allows for separation or marriage agreements to be unfair. It just says agreements cannot be significantly unfair. But this rule does not relate to consent Orders. Consent Order can be significantly unfair yet not ever cancelled, challenged or set aside. If you and your spouse enter into a separation or marriage agreement that says you keep $4 million dollars and your spouse keeps none, those agreements can be challenged based on significant unfairness. But if that agreement is turned into a consent Order, nothing can challenge it unless the Order was entered into by fraud or misrepresentation.

So in cases where one spouse is getting much more property or assets than the other, it is always best to enter into a consent Order and not a separation agreement because no matter how unfair, the consent Order cannot be challenged unless you can prove fraud or misrepresentation.

How to Enter Into Family Law Consent Orders

The difference between entering into a separation agreement or a consent Order is that with consent Orders, you have to explain the issues to a judge and have the judge sign off on the Order. In the case of separation agreements, they are entered into by 2 spouses with a presence of a witness. In the case of family law consent Orders, a judge signs off on a consent Order and that signature makes it difficult if not impossible to challenge the Order. But first you need to get in front of a judge to have the order finalized. 

Here is how you can enter into family law consent Orders:

At the BC Supreme Court level, follow these steps:

  1. File a Notice of Family Claim seeking relief consistent with your agreement or what you want included in the consent Order. So if you and your spouse agree that you can keep $1 million dollars and he/she will keep $500,000, the first thing you need to do is file a Notice of Family Claim stating that you two have agreed to the above noted arrangements.
  2. Serve the Notice of Family Claim on your spouse personally.
  3. If your spouse agrees with the relief sought or does not respond to the claim within 30 days of being served, you can move into the second stage which is obtaining the consent Order.
  4. At the second stage, you must file an affidavit stating the background of your case and how you entered into the agreement as it relates to your marital issues. You must also attach any agreements you and your spouse have;
  5. Next you need to either set down a summary trial or engage in the process of a desk Order divorce to obtain your consent Order.
  6. In cases where things are not consented to at the beginning but you reach a settlement later, your lawyer will usually file a Notice of Application and appear in front of a judge with a draft consent Order signed by all parties. The lawyer will explain the agreements and asks the judge to sign off.
  7. In cases where everything is agreed to from the get-go, the consent Order can happen through desk Order divorce which does not require anyone to appear in front of the judge. The judge will sign the order at his/her ‘desk’. Proper affidavit and evidence needs to be provided to satisfy the judge that an agreement has been reached and everything is in order.

Can I Enter into a Family Law Consent Order Prior or During My Marriage?

Unfortunately not. Consent Orders are usually entered into after separation. However, I believe that BC Family law should allow for couples to enter into consent Orders prior to and during the marriage so that both spouses can put their minds at ease and know that their agreements will never be challenged when they separate – specially as they relate to property and debt division.

There are good reasons for not allowing consent Orders during or before marriage. The financial situation of the spouses may be very different at the time of separation as compared to the time they marry or just before that. Marriage agreements, no matter how strong, still leave the door open for being challenged based on changed circumstances at separation, hence consent Orders cannot be entered during marriage. However, I believe that couples should be entitled to have the option to enter into to Orders that guarantee outcomes no matter how circumstances change.

Spousal Support and Child Support Consent Orders Can be Challenged in BC

Spousal Support and Child Support in BC are issues which can be changed or challenged regardless of whether they have been agreed upon in a family law consent Order or separation agreement.

Child support specially is open to continued change and revision because child support is the right of the child and must be changed as the parents’ incomes change regardless of their agreement.

Spousal support is much more difficult to change when spouses agree to it in a separation agreement or a consent Order. Leena Yousefi was able to challenge and change a family law consent Order on spousal support 5 years after it was entered into with two experienced lawyers. The case was rare and ground breaking, but she managed to change a consent Order on spousal support and have an additional $225,000 in spousal support granted to her client which was extremely rare.

As you have probably sensed by now, entering into a family law consent Order or separation agreement is extremely complicated and fortunes are involved. In order to fully protect your rights, it is always best to at least consult with a lawyer to find the best way of protecting your assets and your future. 

Contact our award-winning Vancouver family law firm at info@ylaw.ca or call 604-974-9529.