Focused and Responsive Advocacy in a Complex Family Law Appeal

In Fan v. He, 2026 BCCA 289, Chen Shen of Henderson & Lee Law Corporation represented the respondent in an appeal arising from complex family litigation involving several alleged agreements, significant property interests, and continuing financial issues. The British Columbia Court of Appeal dismissed the appeal in its entirety.

Family Law Discretion and the Evidentiary Record

The dispute was about the division of various family property and family debt between the parties, and the enforceability of several purported agreements relating to those properties. The trial judge ordered that ownership of some properties be transferred immediately, with a future accounting to determine the exact allocation of debt associated with those properties.

On appeal, the appellant argued that these orders effectively granted "specific performance," meaning a court order requiring a party to perform contractual obligations. The appellant argued that this relief would typically also require the other contracting party to be ready, willing, and able to complete the contract at the same time. The appellant further argued that the respondent - our client - was not in fact able to fulfil her end of the contract, and therefore the trial judgment was an error.

The Court of Appeal rejected this argument and agreed with two of the arguments presented by the respondent.

First, the court rejected the appellant's interpretation of what the respondent was required to do under the divorce agreement, and found that the trial judge did not erroneously ignore what the respondent was required, but allegedly not capable, to do.

Second, the court found that the trial judge's orders were made under s. 97 of the Family Law Act, not under the court's traditional jurisdiction to award specific performance. This difference matters, because section 97 gives a judge broad powers to make orders needed to give effect to a division of family property and family debt, which can include dealing with ownership of property and other orders that are necessary, reasonable, or connected to giving effect to a divorce or separation. This gives a trial judge broad flexibility to craft orders that make property division work in practice, reviewable only on a highly deferential standard if the judge makes an error in principle or some other error that leads to an obviously wrong result.

This appeal confirms that family litigation may be governed by its own set of rules as prescribed by the legislature, which is not always the same as traditional common law rules. Family law places importance on practical resolutions of family disputes and gives judges wide discretion to make that happen.

This article is provided for general information only and does not constitute legal advice. Past results do not guarantee future outcomes.

Henderson & Lee Law Corporation continues to assist clients throughout British Columbia with complex family litigation, family property and debt division, agreement interpretation, appellate proceedings, and strategic litigation management.