“I Signed It Two Years Ago — Can I Still Challenge It?”
Understanding Section 93 of the Family Law Act and the Two-Pronged Test for Setting Aside Property Division Agreements
You signed a separation agreement. Maybe it was two years ago. Maybe longer. At the time, you may have felt pressured, uninformed, or simply eager to move on. Now, looking back, you believe the property division was significantly unfair. The question is: can you do anything about it?
The short answer is: possibly — but the bar is high.
Under British Columbia’s Family Law Act, S.B.C. 2011, c. 25 (the “FLA”), the court can set aside all or part of a separation agreement’s property division provisions. However, the FLA deliberately makes this difficult. The legislation is designed to promote certainty and finality in family law agreements while still providing a safety valve for cases of genuine unfairness. The governing provision is section 93.
1. The Legislative Framework: Sections 92 to 94
Section 92: The Right to Make Agreements
Section 92 of the FLA expressly authorizes spouses to make agreements about property and debt division. These agreements can depart from the default rule of equal division under section 81 — they can divide property and debt equally or unequally, include or exclude items that would not otherwise be included, and value property differently than fair market value. The FLA respects the autonomy of separating parties to craft their own arrangements.
Section 93: The Power to Set Aside
Section 93 is the mechanism by which a court can intervene. It applies to written agreements respecting the division of property and debt where each spouse’s signature has been witnessed by at least one other person (s. 93(1)). The same person may witness both signatures (s. 93(2)).
Section 93 establishes a two-pronged test. A court may set aside or replace the agreement under either prong, or under both.
Section 94: The Gatekeeper Provision
Section 94(2) provides that the court may not make an order dividing property or debt that is already the subject of a witnessed written agreement unless it first sets aside all or part of that agreement under section 93. In other words, section 93 is the gateway: you cannot simply ask a court to re-divide property as though the agreement does not exist. You must first persuade the court that the agreement should be set aside.
2. Prong One: Was the Agreement Fairly Made? (Section 93(3))
The first prong examines the circumstances at the time the agreement was negotiated and signed. Under section 93(3), the court may set aside the agreement if it is satisfied that one or more of the following circumstances existed when the parties entered into it:
(a) Non-Disclosure of Significant Property, Debts, or Information
Section 93(3)(a): A spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement.
Full and honest financial disclosure is the cornerstone of any enforceable family law agreement. If your spouse hid assets, understated the value of a business, or failed to disclose debts, this is a ground for setting aside the property division.
The Supreme Court of Canada emphasized the fundamental importance of disclosure in Rick v. Brandsema, 2009 SCC 10, holding that the duty of full disclosure in family law negotiations is a free-standing obligation that exists independently of any request by the other party. The failure to disclose, even without a specific demand for information, can vitiate an agreement.
⚠ Key Point: Non-disclosure must involve “significant” property, debts, or information. Minor omissions or trivial inaccuracies are unlikely to meet the threshold. The court will assess whether the undisclosed information would have materially affected the negotiation.
(b) Improper Advantage of Vulnerability
Section 93(3)(b): A spouse took improper advantage of the other spouse’s vulnerability, including the other spouse’s ignorance, need, or distress.
This ground captures situations where one spouse exploited the other’s emotional state, lack of knowledge, financial desperation, or other vulnerabilities during the negotiation. Courts recognize that the period surrounding separation is inherently stressful and that power imbalances are common. However, not every emotional difficulty will suffice — the question is whether one spouse took “improper advantage” of the other’s vulnerable position.
(c) Lack of Understanding
Section 93(3)(c): A spouse did not understand the nature or consequences of the agreement.
This applies where a spouse signed the agreement without truly understanding what they were agreeing to — for example, signing a complex agreement without independent legal advice and without appreciating the rights being waived. The absence of independent legal advice is not automatically fatal to an agreement, but it is a significant factor. Where a spouse had no legal advice, did not understand the legal concepts involved, and could not appreciate the economic consequences of the terms, this ground may be made out.
(d) Common Law Vitiating Factors
Section 93(3)(d): Other circumstances that would, under the common law, cause all or part of a contract to be voidable.
This catch-all provision preserves the common law grounds for challenging contracts, including duress, undue influence, unconscionability, fraud, misrepresentation, and mistake. In the family law context, the BC Court of Appeal confirmed in Dhaliwal v. Dhaliwal, 2021 BCCA 72, at paragraphs 15–20, that a marriage agreement will not be enforceable where it is unconscionable — either in the process leading to its negotiation and execution (formation unconscionability) or if it deviates substantially from the statutory objectives governing the consequences of marriage breakdown (operational unconscionability). If the agreement is set aside as unconscionable, the statutory property division regime then applies (Dhaliwal, at para. 21).
⚖ Practice Note: In Asselin v. Roy, 2013 BCSC 1681 — one of the earliest decisions interpreting section 93 — Justice Harvey drew a useful distinction between “procedural unfairness” under section 93(3) and “operational unfairness” under section 93(5). This two-stage framework has been widely adopted.
3. Section 93(4): The Futility Safeguard
Even if one of the section 93(3) grounds is established, section 93(4) gives the court a discretion to decline to act if it would not replace the agreement with an order that is “substantially different” from the agreement’s terms. This prevents parties from setting aside an agreement on a technicality only to end up with an identical result. It also discourages applications that are motivated by litigation strategy rather than genuine unfairness.
4. Prong Two: Is the Agreement Significantly Unfair? (Section 93(5))
This is the prong that applies when the agreement was fairly made — that is, when none of the section 93(3) circumstances existed at the time of signing — but the effect or operation of the agreement is significantly unfair.
Under section 93(5), the court may set aside or replace the agreement if it is satisfied that the agreement is “significantly unfair” on consideration of three factors:
(a) The Length of Time Since the Agreement Was Made
How long ago was the agreement signed? An agreement signed two months ago exists in a very different context than one signed ten years ago. The passage of time can cut both ways: on one hand, circumstances may have changed in ways that make the original terms unfair; on the other hand, lengthy reliance on the agreement may weigh against setting it aside.
(b) The Intention to Achieve Certainty
Did the parties intend the agreement to be final and conclusive? If both spouses negotiated at arm’s length, with legal advice, and intended the agreement to provide a clean break, courts will be slower to disturb it. Conversely, if the agreement was intended as a temporary measure or was entered into without careful deliberation, the intention to achieve certainty carries less weight.
(c) The Degree of Reliance on the Agreement
Have the parties structured their lives around the terms of the agreement? Have assets been sold, homes purchased, debts paid down, or businesses restructured in reliance on the agreement’s terms? The greater the degree of reliance, the more reluctant a court will be to unwind the arrangement.
⚠ Key Point: These three factors serve a dual function: they can support a finding of significant unfairness, and they can also be reasons for the court to leave a significantly unfair agreement in place. The BC Court of Appeal confirmed this in Azanchi v. Mobrhan-Shafiee, 2021 BCCA 55, holding that “a court may determine that, despite significant unfairness, an agreement should not be set aside if, for example, the parties have relied heavily on its terms in making their lifestyle choices, or have deliberately risked having to live with an unfair agreement because they placed a high value on certainty.”
5. What Does “Significantly Unfair” Actually Mean?
The FLA does not define “significantly unfair.” The courts have interpreted the threshold as follows:
In L.G. v. R.G., 2013 BCSC 983, the court held that the term is intended to create greater certainty by limiting judicial intervention to situations that are “unjust or unreasonable.”
In Remmem v. Remmem, 2014 BCSC 1552, Justice Butler elaborated that the Legislature deliberately raised the bar, and that “significant unfairness” requires a finding that the unfairness is “compelling or meaningful.” The Concise Oxford English Dictionary defines “significant” as “extensive or something weighty, meaningful, or compelling.”
The threshold is not a simple comparison to what a court might have ordered under the FLA’s default rules. An agreement is not “significantly unfair” merely because it departs from a 50/50 split. As the BC Court of Appeal cautioned in Johnstone v. Wright, 2005 BCCA 254 (a decision under the predecessor Family Relations Act but still relevant), the court should not conclude that an agreement is unfair simply because it deviates from the statutory property regime.
6. The Broader Context: Miglin and Hartshorne
While section 93 of the FLA is the governing statutory provision in BC for property division agreements, two Supreme Court of Canada decisions provide important background principles:
Miglin v. Miglin, 2003 SCC 24
Although Miglin dealt with spousal support under the Divorce Act (not property division under provincial legislation), it established the foundational two-stage framework that BC’s section 93 mirrors: first, examine the circumstances surrounding the making of the agreement (procedural fairness); second, assess whether the agreement’s terms substantially comply with the legislation’s objectives (substantive fairness). The SCC emphasized that fairly negotiated agreements should be given “great weight” and that courts should only override them in limited circumstances.
Hartshorne v. Hartshorne, 2004 SCC 22
In Hartshorne, the SCC applied the Miglin framework to a marriage agreement under BC’s former Family Relations Act. The Court held that the analysis must consider what the result at trial would be if the agreement’s terms were applied, and then determine whether the agreement operates unfairly in light of whether the parties’ current circumstances were within their contemplation at the time the agreement was made. The presumption is that the division under the agreement is fair unless otherwise shown.
⚖ Practice Note: Section 93 of the FLA was drafted with Miglin and Hartshorne in mind. The two-pronged structure — procedural fairness at section 93(3), operational fairness at section 93(5) — reflects the same analytical framework, adapted to BC’s statutory context.
7. Practical Considerations: What You Need to Know
The Burden of Proof
The onus is on the party seeking to set aside the agreement. You must present evidence establishing either that the process was unfair (section 93(3)) or that the outcome is significantly unfair (section 93(5)).
Timing Matters
Section 93 does not set out its own explicit standalone limitation provision; however, delay and reliance are central under section 93(5), and limitation arguments may still arise depending on procedural posture. Because limitation and transitional issues can be fact-sensitive, parties should seek prompt legal advice; delay can materially weaken a set-aside claim through the certainty and reliance factors in section 93(5), even where substantive unfairness is alleged.
Independent Legal Advice
The presence or absence of independent legal advice (ILA) at the time of signing is a significant factor. If both parties had ILA and full disclosure, it will be substantially harder to set the agreement aside. Conversely, if you signed without any legal advice and did not understand the consequences, this supports an application under section 93(3)(c).
You Can Challenge Part of the Agreement
Section 93 allows the court to set aside “all or part” of an agreement. You do not need to attack the entire separation agreement. If the property division provisions are unfair but the parenting arrangements are working well, you can target the property sections specifically.
What the Court Can Do
If the court sets aside the property division provisions, it can replace them with an order under Part 5 of the FLA. This means the court will apply the default equal division rule under section 81, subject to any exclusions under section 85 and any claim for unequal division under section 95.
8. Case Illustration: Asselin v. Roy, 2013 BCSC 1681
Asselin v. Roy remains one of the most instructive decisions on section 93. In that case, Ms. Asselin signed a cohabitation agreement that limited her property rights. Justice Harvey found that while Ms. Asselin understood the agreement and signed it voluntarily (meaning the section 93(3) procedural grounds were not fully established), the agreement was nonetheless significantly unfair under section 93(5) for several reasons:
- The agreement could not be said to have been the result of the joint intentions of the parties to preserve their separate assets — only Mr. Roy sought the agreement to protect his financial position.
- There was no genuine joint intention to achieve certainty.
- Mr. Roy could not credibly claim reliance on the agreement while simultaneously allowing Ms. Asselin to make significant contributions from her own assets to improve property that would remain his under the agreement’s terms.
The agreement was set aside, and the property was divided under the FLA’s default provisions.
9. Summary: The Section 93 Decision Framework
| STEP 1: Is the agreement a written, witnessed agreement? (s. 93(1)) |
| If YES → Proceed to Step 2. The court may only set it aside under s. 93. If NO (unwitnessed) → The court may still apply s. 93 if appropriate in all circumstances (s. 93(6)). |
| STEP 2 (Prong One): Was the process fair? (s. 93(3)) |
| Did any of the following exist when the agreement was signed? (a) Non-disclosure of significant property/debts/information (b) Improper advantage of vulnerability (c) Lack of understanding of the agreement (d) Common law vitiating factors (duress, undue influence, etc.) If YES → Court may set aside, unless s. 93(4) applies (futility safeguard). If NO → Proceed to Step 3. |
| STEP 3 (Prong Two): Is the agreement significantly unfair? (s. 93(5)) |
| Court considers: (a) Length of time since the agreement was made (b) Intention to achieve certainty (c) Degree of reliance on the agreement’s terms If significantly unfair → Court may set aside (but may still decline if reliance/certainty factors weigh against it). If not significantly unfair → Agreement stands. |
10. Common Questions
“We didn’t have lawyers. Does that automatically make the agreement invalid?”
No. The absence of independent legal advice does not automatically invalidate a separation agreement. However, it is a significant factor under section 93(3)(c) and may support a finding that a spouse did not understand the nature or consequences of the agreement. Courts are more likely to scrutinize agreements signed without legal advice, particularly where the terms deviate significantly from what the FLA would provide.
“The agreement was witnessed. Does that make it impossible to challenge?”
No. A witnessed agreement is the type of agreement covered by section 93(1), and section 93 itself provides the mechanism for setting it aside. Witnessing protects the agreement from being ignored — it requires the challenging party to go through the section 93 analysis — but it does not make the agreement immune from challenge.
“My spouse didn’t disclose a bank account worth $50,000. Is that enough?”
It depends on the overall context. The non-disclosure must involve “significant” property or information. Whether $50,000 is “significant” depends on the total pool of family property. In a $5 million estate, it may not move the needle. In a $200,000 estate, it could be determinative.
“Can I challenge the spousal support provisions in the same application?”
Spousal support provisions in a separation agreement are governed by a parallel but distinct provision: section 164 of the FLA. The test under section 164 mirrors the structure of section 93 but is applied separately. If your agreement addresses both property and spousal support, you may need to bring applications under both sections.
“What about agreements signed before the FLA came into force on March 18, 2013?”
For agreements between married spouses signed before March 18, 2013, the former Family Relations Act (and specifically section 65) may still apply, as section 252(2)(a) of the FLA preserves the prior law for those proceedings. For agreements between unmarried spouses signed before the FLA, the BC Supreme Court held in B.L.S. v. D.J.S., 2019 BCSC 846, that the FLA applies. Transitional treatment depends on spouse status, timing, and proceeding type; obtain case-specific advice before relying on either regime.
Think Your Agreement May Be Unfair? Act Now.
If you believe the property division in your separation agreement was significantly unfair, time is not on your side. The longer you wait, the harder it becomes to persuade a court that the agreement should be set aside. An experienced family lawyer can assess whether your circumstances support an application under section 93 and advise you on the likelihood of success before you commit to litigation.
George Lee Law advises clients on setting aside and enforcing separation agreements in English, Cantonese, and Mandarin. Call 604-681-1611 to schedule a consultation.
This article is intended for general informational purposes only. It does not constitute legal advice and should not be relied upon as such. Every family law matter involves unique facts and circumstances. For advice tailored to your situation, consult a qualified family law lawyer in British Columbia.