H&L Lawyer, Joyce Ling, Successful on the Supreme Court Procedure to Setting Aside Separation Agreements

BC Supreme Court Confirms Procedure to Initiate Proceeding to Set Aside Separation Agreements Engaging Both Property Disputes and Spousal Support

By: Alfonso Chen (Articled Student)

When relationships come to an end, and when the involved parties nonetheless decide to cooperate with one another to avoid heading to court to resolve their disputes, the parties can often agree on important terms in a written agreement called a “separation agreement”. Within this agreement, the parties can resolve the issues on child and spousal support payments and the division of family property and debts.

The Supreme Court of British Columbia (“BCSC”) recently issued a judgment confirming the proper procedure in initiating a case where one seeks to set aside a separation agreement. Accepting the in-court arguments of Henderson & Lee lawyer, Ms. Joyce Ling, the BCSC has confirmed that the proceeding for a case where one seeks to set aside a separation agreement, involving both property disputes and spousal support, can be commenced by filing a requisition and attaching a Separation Agreement pursuant to Rule 2-1 of the Supreme Court Family Rules, B.C. Reg. 169/2009 [ “Family Rules” ]; and thereafter filing a Notice of Application under Rules 10-5(1) and 10-5(2), instead of a notice of family claim. While not constituting legal advice, this article guides the reader with a simple discussion of the decision of Li v Zhu, 2018 BCSC 2182 (“Li”).

The respondent argued “that the primary issues between the parties are almost exclusively related to property and s. 93 of the [Family Law Act]… [and] that the claimant should not be permitted to “shoehorn” this family case into Rule 2-1 just because spousal support is also raised”: Li, at para 31. Though the court found that the respondent’s submissions were persuasive, the court ultimately dismissed the respondent’s objection to the form of proceeding. Notably, the court considered the earlier judgments of Halliday v Halliday, 2015 BCCA 82, and Kler v Kang, 2018 BCSC 1136, and stated that “there were property issues identified in both proceedings. I am unable to ignore the weight of the authority that binds this court”: Li, at para 39.

In addition, in response to the respondent’s submission that she would be “prejudiced by this manner of proceeding because there is no obligatory [judicial case conference], the respondent cannot demand particulars, the claimant need not provide a list of documents, and the claimant need not respond to notices to admit”: Li, at para 40, the court pointed out several court procedures available to the respondent. The court, agreeing with Ms. Ling, stated “that this manner of proceeding is consistent with the object of the Family Rules, as emphasized in Halliday: to assist the parties to resolve their legal issues in a family law case fairly and in a way that will secure the just, speedy and inexpensive determination of every family law case on its merits”: Li, at para 41.

The decision in Li clarifies the procedure to initiate proceedings to set aside separation agreements. While proceedings to set aside separation agreements are unfortunately almost bound to continue to arise in the future, having a greater clarity in what the procedure is to initiate such proceedings may shorten the process for those proceedings to meet the objects of the Family Rules. 

The legal process may be daunting to many. Should you feel the need to find legal representation or advice on family law matters or other legal matters, Ms. Joyce Ling is always looking forward to helping others navigate through the legal process.

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