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.

Joyce Ling, H&L Lawyer, Helps Client Secure More than $130,000 through Reimbursement of Legal Costs from a Four-Year Family Trial

By: Alfonso Chen (Articled Student)

In an article published on June 8, 2018 by the Vancouver Sun, columnist Ian Mulgrew wrote about an assessment of special costs for a four year family trial that burdened a husband “hugely financially and emotionally”, and “was protracted by the ‘mendacity and manipulations’ of the wife who lied repeatedly under oath, fabricated financial documents and refused to accept any reasonable settlement”. Based on the wife’s reprehensible and scandalous conduct at the family trial, Justice Bernard ordered special costs against the wife. On paragraph 3 of the costs judgment, J.M.S. v Y.S., 2017 BCSC 59, Justice Bernard provided that:

The trial – indeed, the entirety of the litigation process – was seriously tainted by the wife’s ongoing deceit and orchestration of events to further her personal objectives. To add insult to injury, the wife accused the husband of paranoia in relation to his suspicions that she was “setting him up” and altering financial documents; these were, eventually, demonstrated to have been well-founded suspicions.

Joyce Ling, of Henderson & Lee Law Corporation, was the husband’s lawyer for the cost assessment hearing for special costs, to determine the reasonableness of the fees paid by the husband for the entire litigation process. If they were found to be reasonable and proper, then the legal fees, disbursements and taxes will be paid by the wife to the husband. The costs hearing assessment took place over the course of five days.

Ms. Ling advocated for the full 100% of the legal fees, disbursements and taxes to be reimbursed to the husband. Instead of being awarded a portion of the trial costs, which is common in special costs cases, the husband was awarded the full 100% of his trial costs claimed, of $104,172.48. Ms. Ling was successful in establishing that all the legal fees, disbursements and taxes paid were reasonable and proper. As well, a majority of the father’s costs for the cost assessment hearing was also ordered to be reimbursed.

The judgment of the hearing, J.M.C. v Y.S., 2018 BCSC 915, concluded on paragraph 66, that:

The total award of special costs is therefore $133,672.48 consisting of $104,172.48 in special costs in relation to the family law case and $29,500 in special costs to the special costs assessment.

Costs associated with litigation are often unpredictable and dependent on other parties’ conduct during the litigation process, whether they be those of the opposing party or those of third parties. If you have any questions, please do not hesitate to contact us.

Link to the Vancouver Sun Article: http://vancouversun.com/news/local-news/ian-mulgrew-b-c-divorcees-scandalous-and-outrageous-conduct-blasted-by-judge

Link to the Assessment of Special Costs: http://www.courts.gov.bc.ca/jdb-txt/sc/18/09/2018BCSC0915.htm

Link to Joyce Ling’s page: http://www.hendersonleelaw.com/legal-team/joyceling/



Loaning money to family members…

With the ever rising cost of real estate in Vancouver, first time home buyers are often required to look for additional sources of financing in order to purchase a home.  Usually these first time home buyers receive assistance from their families and the family may try to document and secure this loan with a promissory note in the event that their child eventually gets a spouse.  This is a suggestion that an accountant made to one of my clients.  The concern with this is that there are two kinds of promissory notes commonly used in these transactions, a demand note that is payable upon the demand of the lender or holder of the note, and a contingent note that is payable once an event occurs, such as the passing of a certain amount of time. 

Since these situations usually occur when there is a “friendly” loan made between family members, a simple demand note is usually chosen as the lender can simply request payment when the borrower is ready to pay rather than requiring payment by a certain date. Many would think that this means that the limitation period for a demand note will begin to run when the repayment is demanded, however this is actually not the case.  This exact type of situation was considered by the British Columbia Court of Appeal in Kong v. Saunders, 2014 BCCA 508 (CanLII), and there the court found that the limitation period begins to run from the date that the demand note is made for all such demand notes made prior to June 2013.  Fortunately, section 14 of the current Limitation Act, passed in June 2013, states that the limitation period of 2 years begins to run on the first day that a failure to pay the note has occurred.  Unfortunately, all demand notes that were made prior to June 2013 are already under a 6 year limitation period that began to run once that note was created.

If you have a demand note, for whatever reason, that was made prior to June 2013 then you should consult a lawyer to determine the current status of the enforceability of such a note.

If you have a situation where you have loaned money to a family member and are in situation where you seek to recover that amount or your family has become embroiled in a family law dispute please contact Chen Shen.