In British Columbia, prenuptial and postnuptial agreements (known as marital agreements), allow couples to set terms for spousal support in the event of separation, providing certainty and helping avoid court involvement.  These agreements can outline whether support will be paid, the amount, and for how long. However, to be enforceable, they must meet certain legal standards and, and courts have the power to set them aside under specific circumstances.

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Common Grounds for Challenging Spousal Support Provisions

Courts may set aside a spousal support agreement if:

• ‍Lack of Full Disclosure: Both spouses must fully disclose their financial situations.  Failing to do so could result in the agreement being invalidated.‍
• Coercion or Duress: If one spouse was pressured into signing the agreement.‍
• Lack of Understanding: If a spouse did not fully understand the agreement, particularly if they did not obtain independent legal advice.‍
• Unfair Terms: Agreements that are grossly one-sided or unfair may not be enforced.

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Further, the Family Law Act in BC and the federal Divorce Act place limits on how much these agreements can restrict spousal support. A waiver will typically be enforced unless it is determined to be “significantly unfair” under section 164 of the Family Law Act, or “substantially not in compliance” with the Divorce Act.

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“Significant Unfairness”

Even if a marital agreement was fair when signed, courts in BC may set it aside if it becomes “significantly unfair”.  This could happen if there are changes in circumstances, such as a shift in income, health, or financial needs.  When determining whether an agreement is significantly unfair, courts will consider factors such as the length of time since the agreement was made, changes in the condition, means, or needs of either spouse, and whether the agreement meets the objectives of spousal support under section 161 of the Family Law Act.

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"Substantially Not in Compliance"

For married couples, the Divorce Act allows courts to override agreements that do not align with its spousal support objectives.  The Supreme Court of Canada’s decision in Miglin v. Miglin, 2003 SCC 24, set a framework for evaluating agreements, considering factors like fairness at the time of signing, and whether the agreement continues to meet the couple’s intentions and the Divorce Act’s objectives.

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Marital agreements offer a practical way for couples to settle spousal support issues privately and avoid litigation, but they must be carefully drafted to ensure fairness and legal enforceability.  Given the complexities involved, seeking legal advice when preparing or reviewing these agreements can help ensure they meet your needs and stand up to scrutiny.

If you’re considering a prenuptial or postnuptial agreement, or if you’re facing a dispute over spousal support, our experienced family law team is here to help.  Contact us for personalized advice to ensure your rights are protected.

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KSW Lawyers, a leading law firm in the Fraser Valley and lower mainland, is pleased to announce that lawyer Aman Bindra has been featured in the 2025 edition of The Best Lawyers: Ones to Watch in Canada.

“Our firm is thrilled to have Aman featured in The Best Lawyers: Ones to Watch in Canada” says partner Peter McCrank.

The 2025 edition of The Best Lawyers: Ones to Watch in Canada covers 51 practice areas across 17 regions and highlights emerging talent in the legal profession. The award is bestowed upon a lawyer by others in their field through a rigorous peer-review process.

“It is an honour to have received this recognition for the second year in a row” says lawyer KSW Lawyer Aman Bindra who was highlighted in the Commercial Leasing Law, Corporate Law and Real Estate Law categories.

Bindra, who was previously featured in the 2024 edition of The Best Lawyers: Ones to Watch in Canada in the Real Estate Law category, gained recognition in 2 additional practice fields: Corporate Law and Commercial Leasing Law. Aman’s work spans multiple million dollar deals across the Vancouver lower mainland.

“We are proud to work alongside emerging lawyers who have demonstrated excellence in their field,” says partner Peter McCrank, “On behalf of the entire KSW Lawyers team, congratulations Aman!”

If you are in need of legal assistance in the areas of real estate, corporate or commercial leasing law, or any other practice area, please do not hesitate to contact us.

KSW Lawyers, a leading law firm in the Fraser Valley and lower mainland, is pleased to announce that four of their lawyers: Chris Drinovz, Christopher Godwin, Michael J. Weiler and Peter McCrank have been featured in the 2025 edition of The Best Lawyers in Canada.

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“Our firm is thrilled to have four lawyers across two of our locations recognized in The Best Lawyers in Canada” says partner Travis Brine.

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The 2025 edition of The Best Lawyers in Canada covers 77 practice areas across 26 regions and recognizes the professional excellence of the top lawyers in the country. The award is bestowed upon a lawyer by others in their field through a rigorous peer-review process.

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“It is an honour to have received this recognition alongside my KSW Lawyers’ colleagues” says lawyer and partner Chris Drinovz who was highlighted in the labour and employment law category.

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Drinovz is one of two lawyers based in the KSW Lawyers Abbotsford office to be featured. KSW Abbotsford lawyer Christopher Godwin was recognized in the personal injury litigation category, while KSW Surrey lawyers Peter McCrank and Michael Weiler received awards in the real estate law and administrative and public law categories respectively.

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“We are proud to work alongside such accomplished lawyers in their field,” says partner Travis Brine, “On behalf of the entire KSW Lawyers team, congratulations Chris, Christopher, Michael and Peter!”

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If you are in need of legal assistance in the areas of employment or real estate law, or any other practice area, please do not hesitate to contact us.

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When two individuals are experiencing the difficult and transformative process of ending a marriage or partnership, it can come with a myriad of questions and uncertainties. One of the more daunting aspects of this process is understanding the tax implications of paying and receiving spousal support in British Columbia. As the legal and financial aspects of ending a spousal relationship can be overwhelming, it is crucial to have a comprehensive understanding of how spousal support may affect your taxes.

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Two Types of Spousal Support in BC

In BC, there exists two main forms of spousal support that may be required when a spousal relationship comes to an end: lump sum spousal support and periodic support. Although lump sum spousal support may not be applicable in every separation, it is crucial to carefully consider the potential tax implications when it is an option. Lump sum spousal support involves a one-time payment from one spouse to the other, which covers the entire financial obligation. In contrast, periodic spousal support is paid monthly, either for a set period of time or without a specified end date. The tax ramifications of each type of spousal support are unique and should be seriously considered.

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Periodic Spousal Support

In the case of periodic spousal support, it is only considered taxable income for the recipient. This means that the person receiving support is required to report it as part of their annual income when filing their tax return. On the other hand, for the payer of the support, it is considered a tax-deductible expense. This means that they can deduct the amount they paid in spousal support from their income, thereby reducing their overall tax burden.

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Lump Sum Spousal Support

The tax implications are different for lump sum spousal support, however. This type of support is often a one-time payment intended to provide financial assistance to the dependent spouse up-front instead of monthly payments. Lump sum spousal support is not taxable for the person receiving it, meaning that the recipient does not have to report it as income. For the payor, the lump sum payment will not be tax-deductible.

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Spousal support is a very complicated area of the law, and the tax implications are just one of many considerations that must be made; the potential legal ramifications are not something that should be taken lightly. While the topic of spousal support payments may seem daunting, with the proper guidance and advice, individuals can navigate through this complex legal area with confidence. Seeking the assistance of an accountant, financial planner, and lawyer is advised to ensure all factors are properly considered, including any potential tax implications. These professionals have a deep understanding of the financial aspects of spousal support and can provide invaluable advice on tax implications and other financial considerations. So, if you are faced with spousal support payments, do not hesitate to seek the help you need to make the most informed decisions.

The province of British Columbia has seen a significant rise in income tax and GST assessments due to increased audits on real estate transactions. In 2024, the number of these files reached nearly 1,100, a stark increase from the mere 114 assessments filed in 2015.

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If you have recently sold your home, it is highly likely that you will receive a notification from the CRA through their signature brown envelopes. While some may agree with the reassessment and pay accordingly, many taxpayers may find it necessary to challenge the decision.

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So what steps should you take in this situation?

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Learn Important Dates

First and foremost, it is crucial to familiarize yourself with the deadlines relevant to your file. By the time you receive the Reassessment in the mail, the clock is already ticking, and failure to act before the time expires will result in the CRA considering the additional taxes owed as accepted. You have a limited window of 90 days from the date listed on your reassessment (NOT the date you received it) to submit an objection. But what if you have already exceeded the 90-day period? This brings us to our next point…

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Contact a Lawyer

It is imperative to seek the assistance of a lawyer who specializes in tax disputes immediately. A reputable tax lawyer can offer guidance and ensure all your concerns are addressed throughout the process. and can potentially obtain an extension for submitting the objection. Though it is crucial to note that securing an Objection may become more challenging the longer you wait to file.

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Collect Relevant Documents

Now that you understand the deadlines and have contacted a tax lawyer, your next step is to gather all relevant documents. These may include utility bills, insurance papers, and bank documents that have your previous residence's address listed. These documents will aid your tax lawyer in demonstrating that you did, in fact, reside at the property in question.

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Take Notes

Lastly, make sure to note down all the reasons and circumstances surrounding the purchase and sale of your home. This may include factors such as an expanding family, changes in the neighborhood, rising cost of living or maintaining the property, relocation for work or school, among others. These notes will serve as a helpful reminder when discussing your case with your tax lawyer.

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It is crucial to act promptly if you receive a reassessment from the CRA. Being aware of the deadlines, seeking legal assistance, and collecting relevant documents will greatly strengthen your position in challenging the decision. Remember, the clock is ticking, and timely action is critical.

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As a developer or investor in the Canadian construction market, it is crucial to be well-versed in the CCDC contracts. These contracts are the industry standard forms used across the country and are suitable for most development projects.

I have received numerous inquiries about CCDC contracts in the past; Let's delve into the four main CCDC contracts: CCDC 2, the combination of CCDC 5A and CCDC 17, CCDC 3, and CCDC 5B. Each of these contracts will be discussed in detail to provide a comprehensive understanding. Simply put, being knowledgeable about these CCDC contracts is crucial for your success in the construction industry.

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CCDC2

The CCDC 2 is the most commonly used standard form for construction contracts. It is a fixed price and fixed schedule contract in which the owner, who is also the developer, enters into an agreement with a general contractor. The contractor provides one fee to the owner and is responsible for entering into separate contracts with each sub-trade.

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This type of contract offers a multitude of benefits for the owner. It provides pricing certainty, as all the risk of Tradesmen not performing their contracts falls on the contractor. In case of any issues, the owner can make claims against the contractor. Moreover, lenders favor this type of contract as it provides them with pricing certainty when advancing construction loans to Developers.

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Overall, the CCDC 2 offers a reliable and secure approach to construction contracts, benefitting all parties involved.

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Construction Management Model (CCDC 5A + CCDC 17)

The Construction Management Model (CCDC 5A + CCDC 17) entails the owner entering into a CCDC 5A contract with a construction manager in addition to separate CCDC 17 contracts with each tradesperson. Tthe construction manager's fee is typically a percentage of the total project cost, or potentially a flat fee.

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In this model, the construction manager will provide a range of services to the owner, such as constructability review, assistance with tendering and bidding, and finding skilled tradespeople. Under this model, the owner must be equipped to handle the associated risks and possess sufficient administrative skills to negotiate directly with each tradesperson.

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While a suitable option for capable owners, this model does come with potential risks. Should any issues arise, the owner will be responsible for managing and resolving them with each individual tradesperson.

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Nevertheless, for sophisticated owners, this model offers increased pricing certainty as they can negotiate directly with each tradesperson.

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CCDC 5B

The CCDC 5B contract model combines elements of the CCDC 5A model with some additional factors. Under this model, the construction manager is responsible for providing pre-construction services for a fee, similar to the CCDC 5A model. However, the owner also has the opportunity to appoint the construction manager as a contractor for a fixed fee.

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It is important to note that this arrangement introduces some pricing risk, as construction managers often have more leverage in later stages of the process. This may lead to them exerting more influence until the owner exercises the option for them to carry out the construction work.

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In the case of amending or exercising the option for CCDC 5B, if the construction manager is also acting as the contractor for the actual construction work, it will be necessary to amend the standard form using supplementary conditions.

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Therefore, for developers utilizing the CCDC 5B model, it is essential to have a lawyer draft these supplementary conditions to ensure their interests are protected.

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Cost Plus Contract (CCDC 3)

The Cost Plus Contract (CCDC 3) model bears similarity to CCDC2 as it is a general contractor model. Under this contract, the owner enters into an agreement with one contractor who then assumes responsibility for signing separate contracts with all the tradespeople.

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The owner must bear all the costs of these individual trades contracts and also pay the contractor a fee on top of that. As a contractor, the risk is intermediary between CCDC2, where you have full control, and 5A, where you do not hold the risk of directly entering into contracts with tradespeople and ensuring their work is done properly.

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CCDC3 is a hybrid contract and is most effective for renovation projects or those with an undefined scope, where the exact location of construction is unclear, making it challenging to obtain multiple bids.

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Those are four of the primary CCDC contracts commonly used for residential and mixed-use development in BC. Familiarity with these contracts is crucial for successful project management. Standard form CCDC can be modified with supplementary conditions to meet specific project needs. These conditions enhance the contract and serve three main purposes: addressing unique business points, optimizing administrative processes, and allocating risk between the contractor and developer.

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Overall, understanding CCDC contracts and utilizing supplementary conditions can greatly benefit construction projects in BC.

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Curious to learn more? Check out the video above to delve deeper into the topic!

As a parent, you want what's best for your child and that includes ensuring that your custody agreement is upheld without any hiccups. However, summer vacation can throw a wrench into any carefully crafted custody arrangement, causing confusion and potential legal issues. With children out of school and planned vacations being a common occurrence it's important to understand the possible complications that can arise during this time and take the necessary steps to protect yourself and your custody agreement. So, what can you do to protect yourself and your custody agreement during this time of year? To help you navigate this potentially tricky situation, here are three tips that you may want to consider.

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Plan Ahead

The key to avoiding any complications during summer vacation is to plan ahead. It's crucial to have a comprehensive parenting schedule in place that takes into account your child's school holidays. Coordinate with your ex-partner to determine the specific dates and times that each parent will have custody of the child. This will help prevent any scheduling conflicts and ensure that there is clarity in the agreement. It's also important to keep in mind any planned vacations or activities that may interfere with the custody schedule. By addressing these potential conflicts beforehand, you can avoid any unnecessary legal battles in the future.

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Extend Visitation

During the summer break, it can be highly advantageous for a child to have extended periods of time with each parent. This not only provides the opportunity for a stronger connection with both parents, but also allows for fun and engaging holiday activities like camping or traveling. Longer visits with each parent can also be beneficial for the child's emotional well-being. Moreover, these longer periods of time can also allow for a smooth transition between households. It is important for parents to consider the advantages of longer visits and work together to create a summer schedule that allows the child to spend quality time with both parents. By including this in your parenting schedule, you're not only setting up your child for an enjoyable summer but also avoiding any potential conflicts that may arise.

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Keep in Touch

Along with scheduling, it's essential to include provisions for regular communication between the child and the non-custodial parent during longer periods of time when they are not physically present. This can include video chats, phone calls, or even sending letters or postcards. Maintaining regular contact with both parents can help children feel connected and supported, especially when they are away from one household for an extended period. Not only does this help maintain a strong parent-child relationship, but it also ensures that the off-duty parent is still involved in important decision-making processes, thus upholding the terms of the custody agreement.

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If you find yourself in a situation where your custody agreement is being compromised, don't hesitate to seek legal advice. An experienced family lawyer can provide guidance and assist in protecting your rights as a parent. They can also help mediate any conflicts between you and your ex-partner and ensure that the best interests of the child are met. In some cases, seeking legal assistance may be the only way to enforce the custody agreement and ensure that it is upheld.

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While summer vacation can make child custody agreements more complicated, taking the necessary steps to protect yourself and your agreement can help prevent any legal issues from arising. By planning ahead, documenting everything, and seeking legal advice if necessary, you can ensure a smooth and stress-free summer for you and your child.

Effective January 1, 2025, the federal government will lower the criminal interest rate from 60% effective annual rate (EAR) to 35% annual percentage rate (APR), which equals about 42% EAR, in order to combat predatory lending. “Interest” includes all charges and expenses, including fees, fines, penalties, or commissions, associated with a loan.

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Commercial loans under $10,000 will have the new interest rate limitations.

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Commercial lenders will be allowed to structure loans with an interest rate of up to 48 per cent APR for loans between $10,000 and $500,000, in order to provide small business owners with some level of protection from loan sharks.

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Commercial loans over $500,000 can be structured with no cap on the interest rate, allowing for more flexibility for risky credit borrowers. The reason being that these types of larger, sophisticated transactions should not affect vulnerable Canadians.

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Lenders and brokers should be aware of these changes and take the time to learn their responsibilities under the new laws. Violations can result in fines of up to $25,000, or imprisonment of up to 5 years.

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If you are a private lender or mortgage broker with any questions related to the new laws, or require help in navigating these pending changes, reach out to Aman Bindra at [email protected] or 604-591-7321 today.

The province continues to show deference to employers in wrongful termination cases advancing through to the highest courts in BC.
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In the recent BC Court of Appeal case, Egan v. Harbour Air Seaplanes LLP, 2024 BCCA 222 (CanLII), the court found that the termination clause in Harbour Air’s employment contract with its former employee, Mr. Egan, to be reliable and unambiguous. No award was granted to the plaintiff beyond what Harbour Air had already paid him under its termination clause, whereby the clause lawfully adhered to termination minimums set out under the Canada Labour Code, RSC 1985, c. L-2 (“Code”).
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In reaching her decision, Madam Justice Baker outlined the pertinent sections of the Code regarding the work done by Harbour Air, being “aircraft” and “air transport”, which clearly falls under federal jurisdiction.  Similar to provincial legislation, such as B.C.’s Employment Standards Act [RSBC 1996], the Code sets out minimum termination entitlements based on an employee’s length of service.  The legal analysis relied on cases tied to provincial legislation, and the judge held:
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“While these cases rely on provincial employment standards…there is no principled reason why such reasoning would not apply to an employment contract governed by the Code.”
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Further legal analysis surrounding the fact that Mr. Egan’s benefits were terminated in an alleged contravention of the Code fell flat because it was determined that he was no longer employed from the date of his termination, was duly paid all his termination pay, and as he was no longer an employee of Harbour Air, terminating his benefits had no relevance under section 231 because there was no “working notice” under which the benefits would require to be extended.
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Mr. Egan’s claim for damages was dismissed and Harbour Air’s application to dismiss the action was allowed.  
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This case is good authority for employers who wish to rely on their well-drafted, unambiguous and lawful employment agreements, including crucial termination clauses.  It helps employers to understand certain nuanced differences between provincial and federal legislation regarding employment matters, and the importance of getting this right at the outset.

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