In a recent case, Bradley v. Callahan, 2024 BCSC 163, the
The most impactful clause of the marriage agreement was that
Despite the terms of the marriage agreement,
If the court disregarded the marriage agreement,
Property Division- Should the Marriage Agreement be Applied?
The general rule during a separation is that each spouse has an undivided one-half interest in the family assets. This is subject to exceptions, one being the terms of a marriage agreement.
However, a court may determine that an otherwise valid and binding agreement operates unfairly with respect to the division of property in light of the specific case circumstances and the court may then order a different division.
To be enforceable, the agreement must operate fairly at the time of distribution, as the court recognized in Hartshorne v. Hartshorne, 2004 SCC 22. To determine if an agreement operates fairly, a court must apply the agreement and then, in consideration of factors listed in s. 65(1) of the Family Relations Act, make a determination as to whether the contract operates unfairly.
Here, the court considers the parties' personal and financial circumstances, and how these circumstances evolved over time. If the current circumstances were reasonably foreseeable by the parties at the time the agreement was formed, and where the agreement reflects consideration and response to these circumstances, then the party seeking to move away from the marriage agreement has a heavier burden to establish unfairness.
Was the Marriage Agreement Valid?
The court found that none of these reasons were sufficiently established here. The agreement drafted was comprehensive and was negotiated with experienced lawyers for both parties.
Regarding the preparation and execution,
Therefore, the agreement was valid and binding on the parties.
Did the Marriage Agreement Operate Fairly?
The court considered the factors set out in s. 65(1) of the Family Relations Act in their assessment of whether the agreement operated fairly.
These factors included:
- Duration of the marriage: The marriage lasted for almost 17 years, in addition to the 5 years the parties lived together before marriage.
- Duration of period during which spouses have lived separate and apart: The parties lived separate and apart for about 9 years at the time of trial.
- Date when property was acquired or disposed of:
Mr. Callahan continued to hold theArgus Group corporate assets as they evolved. - Extent to which property was acquired by one spouse through inheritance or gift: To a significant degree,
Mr. Callahan's corporate assets resulted from his father being engaged in acquiring and developing real estate. - Needs of spouse to become or remain economically independent and self-sufficient:
Ms. Bradley would enjoy economic independence and self-sufficiency under the agreement. The agreement providedMs. Bradley with, among other things, a principal residence that was similar to the one she shared withMr. Callahan . The court found that any shortfall in independence or self-sufficiency may be made up by an appropriate order for maintenance. - Any other circumstances relating to the acquisition, maintenance, improvement or use of property or capacity/ liabilities of a spouse: There were no other circumstances that would take away from the fact that the parties understood that
Mr. Callahan's business assets would be his sole property as defined in the agreement.
The court disagreed and found that the parties understood that
Conclusion
The court found it should not disregard the parties' original intentions as reflected in the marriage agreement.
Take Away
This case demonstrates the value of well-prepared marriage agreements and the importance of having one to protect your interest in business assets, even if those business assets are not worth a substantial amount at the time of drafting the agreement.
This judgment reinforces that an agreement will not be set aside for being "unfair", even when the difference between the value of family assets with or without the agreement is significant, so long as the agreement was drafted using the appropriate procedures.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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