Family law matters often involve complex legal processes, but not all resolutions occur within the confines of a court room. When marriage breakdown occurs, it is not uncommon for the parties to try to sort out their differences by attempting a written Agreement between them, often without lawyers being involved. These Agreements tend to be referred to as “kitchen table” Agreements due to their homemade origins. While most lawyers would encourage a separated spouse to get some legal advice before embarking on a such an ambitious undertaking, it is nonetheless still very common for many individuals to try to save a few dollars in legal fees by tackling a homemade “kitchen table” Agreement to address the various issues facing the separated parties.
The Supreme Court of Canada released a decision recently which dealt with the issue of domestic contracts between spouses (Anderson v Anderson, 2023 SCC 13) in the context of provincial legislation that governs the nature of such Agreements. While the Courts at all three levels of the litigation (based out of the province of Saskatchewan) had different views of the Separation Agreement signed by the Andersons at the end of their three-year marriage, the Supreme Court of Canada ultimately decided that these type of “kitchen table” Agreements should, as a general rule, be encouraged and supported by the court system, with a few cautionary measures added. The end result is that the public must understand that fairness remains the yardstick against which all such Agreements will be assessed.
The fundamental pillars in reviewing “homemade” Agreements insofar as family law lawyers are concerned, tends to be whether the parties exchanged financial disclosure or at least had some reasonable understanding of the respective financial profiles of each side prior to any negotiations. Full financial disclosure includes details about income, assets, liabilities, and expenses. It is essential for ensuring that both parties have a fair and transparent understanding of the financial resources available, which in turn helps in making equitable decisions regarding property division and support obligations.
There also is an expectation that each side had an opportunity to get Independent Legal Advice before signing any contract. Independent Legal Advice is important to ensure that an individual fully understands their rights, options and the implications of any legal agreement they may be making. This helps to safeguard an individual's interests and ensures that they are making informed decisions that align with their best interests.
Even if the financial disclosure was made and Independent Legal Advice was received, there are some contracts that nonetheless might still be objectively viewed by the court as being “unconscionable” in relation to each province's family law legislation and, for that reason, the impugned contract may be set aside or overridden by a judge in a court context.
When faced with a “kitchen table” Agreement, a lawyer has to be careful in comparing what the parties bargained for against these types of considerations, in advising clients whether their particular contract may or may not be upheld. While “kitchen table” Agreements may not have had the benefit of full financial disclosure or Independent Legal Advice, if it is fair (i.e., NOT unconscionable) and in compliance with a provincial legislation, the contract will not simply be set aside in the event one party has a change of heart for whatever the reason, and, wants to open up the signed settlement for judicial review at a later date.
“Kitchen table” Agreements offer an alternative approach to resolving family law matters, emphasizing direct negotiation in a more informal setting. While they can be effective in many cases, it is crucial to recognize their limitations and seek professional legal advice to ensure that the agreement is legally binding and equitable for all parties involved.
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.
