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The Canadian Abridgment eDigests - Family Law - Western The Canadian Abridgment eDigests -- Family Law - Western 2007-38 September 17, 2007 FAM.III.5.a.i Subject Title: Family law Classification Number: III.5.a.i Family property on marriage breakdown -- Assets which may be excluded from property to be divided -- General principles -- Family and non-family assets Parties married in 1980 -- Husband and S entered into agreement in 1988 whereby husband accepted S's offer to work for company with potential to become 30 per cent partner if company met certain stipulated performance conditions in first three years -- Company did not meet performance conditions -- Husband and S entered into new arrangement in 1991 whereby husband would be given 30 per cent interest in company without requirement that any performance targets be met -- 1991 agreement was never reduced to writing and S did not transfer shares to husband -- Parties separated in 1994 and entered into separation agreement -- Section 27(3) of separation agreement provided that wife acknowledged that husband did not have any legal or beneficial interest in shares or assets of company -- Husband filed petition for divorce and parties were divorced in February 1996 -- Husband obtained judgment in action for wrongful dismissal which revealed that he had obtained substantial payout from sale of company and that he had testified in those proceedings that company had been holding 30 per cent interest in trust for him -- Wife filed Answer and Counter-Petition in divorce proceedings in August 1998 -- Trial judge declared that husband's interest in company was family asset and that wife was entitled to undivided half interest in asset as tenant in common -- Trial judge's order set aside s. 27(3) of separation agreement and declared that s. 27(3) did not operate as waiver by wife of any interest in company -- Husband appealed -- Appeal dismissed -- Husband was from and after discussions of September 1991 in position to call upon S to perform his end of bargain -- Trial judge did not err in finding that husband had enforceable contract with S as of their meeting in September 1991 pursuant to which husband was entitled to 30 per cent interest in company -- Husband's interest in company, which became chose in action in September 1991, was family asset because it was in nature of venture to which wife had contributed money or money's worth within meaning of s. 58(3) of Family Relations Act -- Trial judge's finding that parties were operating under common mistake that husband had no enforceable interest in company at time of separation agreement was supported by evidence and was correct -- Value of asset was over one million dollars and trial judge was entitled to rely on that fact in concluding that common mistake of parties was fundamental -- There was no basis for interfering with 3:25:10 PM file:///Y|/Corporate%20Marketing/public/Legal%20Onlin...HTML%20Files/07-09-17/CanAbr-Family(West)-2007-38.htm (1 of 22)9/17/2007

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The Canadian Abridgment eDigests - Family Law - Western

The Canadian Abridgment eDigests -- Family Law - Western

2007-38 September 17, 2007

FAM.III.5.a.i Subject Title: Family law

Classification Number: III.5.a.i

Family property on marriage breakdown -- Assets which may be excluded from property to be divided -- General principles -- Family and non-family assets

Parties married in 1980 -- Husband and S entered into agreement in 1988 whereby husband accepted S's offer to work for company with potential to become 30 per cent partner if company met certain stipulated performance conditions in first three years -- Company did not meet performance conditions -- Husband and S entered into new arrangement in 1991 whereby husband would be given 30 per cent interest in company without requirement that any performance targets be met -- 1991 agreement was never reduced to writing and S did not transfer shares to husband -- Parties separated in 1994 and entered into separation agreement -- Section 27(3) of separation agreement provided that wife acknowledged that husband did not have any legal or beneficial interest in shares or assets of company -- Husband filed petition for divorce and parties were divorced in February 1996 -- Husband obtained judgment in action for wrongful dismissal which revealed that he had obtained substantial payout from sale of company and that he had testified in those proceedings that company had been holding 30 per cent interest in trust for him -- Wife filed Answer and Counter-Petition in divorce proceedings in August 1998 -- Trial judge declared that husband's interest in company was family asset and that wife was entitled to undivided half interest in asset as tenant in common -- Trial judge's order set aside s. 27(3) of separation agreement and declared that s. 27(3) did not operate as waiver by wife of any interest in company -- Husband appealed -- Appeal dismissed -- Husband was from and after discussions of September 1991 in position to call upon S to perform his end of bargain -- Trial judge did not err in finding that husband had enforceable contract with S as of their meeting in September 1991 pursuant to which husband was entitled to 30 per cent interest in company -- Husband's interest in company, which became chose in action in September 1991, was family asset because it was in nature of venture to which wife had contributed money or money's worth within meaning of s. 58(3) of Family Relations Act -- Trial judge's finding that parties were operating under common mistake that husband had no enforceable interest in company at time of separation agreement was supported by evidence and was correct -- Value of asset was over one million dollars and trial judge was entitled to rely on that fact in concluding that common mistake of parties was fundamental -- There was no basis for interfering with

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The Canadian Abridgment eDigests - Family Law - Western

finding that parties were operating under common mistake as to husband's interest in company as of date of separation agreement or with conclusions that s. 27(3) of separation agreement should be set aside and husband's interest in company divided equally.

Hannigan v. Hannigan (2007), 2007 BCCA 365, 2007 CarswellBC 1576, Lowry J.A., Prowse J.A., Rowles J.A. (B.C. C.A.); affirming (2002), 29 R.F.L. (5th) 69, 2002 CarswellBC 1280, 2002 BCSC 719, McEwan J. (B.C. S.C.); additional reasons at (2003), [2003] B.C.J. No. 1083, 2003 CarswellBC 1097, 2003 BCSC 712, McEwan J. (B.C. S.C.) [British Columbia]

FAM.III.5.c.vii Subject Title: Family law

Classification Number: III.5.c.vii

Family property on marriage breakdown -- Assets which may be excluded from property to be divided -- Gifts and inheritances -- Ontario

Parties married for eight months -- It was second marriage for both parties and there were no children of marriage -- Husband gave wife money and transferred title to three different apartments into wife's sole name -- Parties brought application for divorce, which was granted -- Husband brought action to determine apportionment of assets -- Action dismissed -- Wife could not be held accountable for money that husband decided to give to her mother or other relatives -- There was no agreement that wife would repay some of money.

Zhu v. Li (2007), 2007 BCSC 1117, 2007 CarswellBC 1745, W.F. Ehrcke J. (B.C. S.C.) [British Columbia]

FAM.III.5.f.i.G Subject Title: Family law

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Classification Number: III.5.f.i.G

Family property on marriage breakdown -- Assets which may be excluded from property to be divided -- Investments -- General principles -- Ontario

Parties married for eight months -- It was second marriage for both parties and there were no children of marriage -- Husband gave wife money and transferred title to three different apartments into wife's sole name -- Parties brought application for divorce, which was granted -- Husband brought action to determine apportionment of assets -- Action allowed in part -- Provisions of separation agreement should be varied, but only to extent of net value of investment that was transferred from wife to husband -- Sixty-six thousand USD did not constitute wedding gift to wife, but rather was intended for wife to invest for husband -- Timing of deposit made little sense as wedding gift -- Money was not used for anything related to wedding or to life together, rather, it was put into wife's investment account -- No documentation to suggest that purpose of deposit was gift -- Transfer was different from transfers of real property, in which husband signed transfer documents showing intention that title be changed from his name to her name.

Zhu v. Li (2007), 2007 BCSC 1117, 2007 CarswellBC 1745, W.F. Ehrcke J. (B.C. S.C.) [British Columbia]

FAM.III.7.b.iii.A Subject Title: Family law

Classification Number: III.7.b.iii.A

Family property on marriage breakdown -- Events after separation -- Sale or dissipation of assets -- Order for preservation of property -- General principles

Parties married in 1989, had two children and separated in 2003 -- Wife earned $34,000 per year and husband earned approximately $70,000 per year -- During marriage wife was full-time homemaker -- Following separation, parties sold matrimonial home and divided proceeds -- Parties had equal interest in company which, together with numbered company owned by husband's father, owned property valued at $635,000 -- Husband sought to sell property in 2006 -- Wife brought successful interlocutory application pursuant to s. 67(1) of Family Relations Act restraining husband from disposing of property -- Husband brought appeal from order -- Appeal allowed -- S. 76(1) of Act applied to restrict party to action but did not apply to non-party -- Effect of order improperly prevented owners of property who

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The Canadian Abridgment eDigests - Family Law - Western

were non-parties from disposing of property -- No provision equivalent to impact of s. 67(1) on family assets existed to authorize orders concerning property owned by non-party.

Miklosko v. Miklosko (2007), 2007 BCSC 524, 2007 CarswellBC 804, R.B.T. Goepel J. (B.C. S.C.) [British Columbia]

FAM.III.8.c.ii Subject Title: Family law

Classification Number: III.8.c.ii

Family property on marriage breakdown -- Factors affecting equal or unequal division -- Debts -- Family debts

Parties married in 1985, had two children, and separated in December -- Husband earned $602,400 per year as partner in chartered accountant firm -- Wife was chartered accountant, but worked very reduced hours from home for most years after children were born and earned no income in recent years -- Parties had significant assets including valuable matrimonial home valued at $2,250,000, luxury vehicles, valuable stock portfolio, and led extravagant life style -- Husband incorporated numbered company for stock investment purposes and incorporated professional company to reduce personal income tax -- Following separation, husband deferred taxes on 2006 income, incurred tax penalty for failure to meet filing deadline related to taxable dividend from numbered company and had other tax debts arising from management company -- Following separation, wife incurred credit card debt of $68,000 -- Since separation, husband paid wife $10,000 per month combined spousal and child support, paid all expenses related to maintenance of matrimonial home where wife and child resided and paid all educational expenses of children -- At time of separation, elder son was 19 years of age and full-time university student in Quebec and younger child was 16 years of age and in last year of private high school -- Wife applied for division of family assets -- Issue arose regarding which of husband's and wife's debts were family debts -- Application granted -- Majority of husband's tax debts were appropriately characterized as family debt and apportioned equally between parties -- Husband's deferral of 2006 taxes allowed family to afford expensive life style and evidence supported conclusion that money saved by tax deferral was mainly used for family purposes -- Tax debt arising from husband's late filing was family debt as family clearly benefited from funds paid out as dividends -- $34,000 of wife's credit card debt was appropriately characterized as family debt as amounts were incurred to cover her and children's expenses, with husband's $10,000 monthly support inadequate for life style.

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E. (Y.J.) v. R. (Y.N.) (2007), 2007 CarswellBC 782, 2007 BCSC 509, M.E. Boyd J. (B.C. S.C.) [British Columbia]

FAM.III.9.d Subject Title: Family law

Classification Number: III.9.d

Family property on marriage breakdown -- Order for division of property -- Order for partition and sale

Parties married in 1985, had two children, and separated in December -- Husband earned $602,400 per year as partner in chartered accountant firm -- Wife was chartered accountant, but worked very reduced hours from home for most years after children were born and earned no income in recent years -- Parties had significant assets including valuable matrimonial home valued at $2,250,000, luxury vehicles, valuable stock portfolio, and led extravagant life style -- Since separation, husband paid wife $10,000 per month combined spousal and child support, paid all expenses related to maintenance of matrimonial home where wife and child resided and paid all educational expenses of children -- At time of separation, elder son was 19 years of age and full-time university student in Quebec and younger child was 16 years of age and in last year of private high school -- Wife applied for division of family assets -- Issue arose whether immediate sale of matrimonial home was appropriate -- Wife took position that younger son's strong attachment to home supported continued exclusive possession until he graduated from high school -- Application granted -- Order was issued for immediate sale of matrimonial home -- Younger son's purported attachment to matrimonial home failed to justify retainer for next 18 months -- Continuing status quo of husband paying all costs associated with large home simply delayed date for facing true costs of family's life style -- Following division of family assets wife would have means to purchase replacement home.

E. (Y.J.) v. R. (Y.N.) (2007), 2007 CarswellBC 782, 2007 BCSC 509, M.E. Boyd J. (B.C. S.C.) [British Columbia]

FAM.IV.1.b.i

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The Canadian Abridgment eDigests - Family Law - Western

Subject Title: Family law

Classification Number: IV.1.b.i

Support -- Spousal support under Divorce Act and provincial statutes -- Entitlement -- General principles

Parties married in 1985, had two children, and separated in December -- Husband earned $602,400 per year as partner in chartered accountant firm -- Wife was chartered accountant, but worked very reduced hours from home for most years after children were born and earned no income in recent years -- Parties had significant assets including valuable matrimonial home valued at $2,250,000, luxury vehicles, valuable stock portfolio, and led extravagant life style -- Since separation husband paid wife $10,000 per month combined spousal and child support, paid all expenses related to maintenance of matrimonial home where wife and child resided and paid all educational expenses of children -- At time of separation, elder son was 19 years of age and full-time university student in Quebec and younger child was 16 years of age and in last year of private high school -- Wife applied for spousal support -- Husband took position that wife was underemployed and that annual income of $75,000 should be imputed to her -- Application granted -- Husband was ordered to pay $15,128 per month spousal support for first eight months followed by $14,148 per month thereafter -- Husband clearly had means to pay spousal support and wife's ability to return to full-time employment at $75,000 per year was highly doubtful -- Retraining and launching new career for wife required determined effort and debilitating health consequences of marital breakdown were continuing -- Imputing part-time income to wife of $35,000 per annum beginning January 2008 was more realistic.

E. (Y.J.) v. R. (Y.N.) (2007), 2007 CarswellBC 782, 2007 BCSC 509, M.E. Boyd J. (B.C. S.C.) [British Columbia]

FAM.IV.1.g.i Subject Title: Family law

Classification Number: IV.1.g.i

Support -- Spousal support under Divorce Act and provincial statutes -- Interim support -- General principles

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Parties married in 1989, had two children and separated in 2003 -- Wife earned $34,000 per year and husband earned approximately $70,000 per year -- During marriage wife was full-time homemaker -- Following separation, parties sold matrimonial home and divided proceeds -- Parties had equal interest in company which, together with numbered company owned by husband's father, owned property valued at $635,000 -- Wife applied for interim spousal support -- Application dismissed -- No evidence supported conclusion that wife needed interim spousal support -- Full trial of action was scheduled within next seven months -- Wife waited four years to seek interim support, and full determination of wife's entitlement to compensatory and non-compensatory support was appropriate.

Miklosko v. Miklosko (2007), 2007 BCSC 524, 2007 CarswellBC 804, R.B.T. Goepel J. (B.C. S.C.) [British Columbia]

FAM.IV.2.a.v Subject Title: Family law

Classification Number: IV.2.a.v

Support -- Child support -- Duty to contribute -- Child withdrawing from parental control

Parties were parents of two adult children -- Daughter was 28 years old, received provincial income assistance for mental disability, was unable to work, and resided semi-independently in assisted living facility -- Son was 26 years old and attended university -- In 2005, father was ordered to pay $140 per month for support of daughter and $100 per month for support of son -- Father's motion to terminate child support obligations on basis that children were no longer children of marriage was dismissed -- Father appealed -- On appeal, father introduced new evidence that daughter's grandfather endowed trust fund in her favour in amount of $100,000, and that son was no longer attending university -- Appeal with respect to daughter was dismissed, and appeal with respect to son was allowed -- Daughter was neither able to withdraw herself from parties' charge nor to provide herself with necessaries of life -- There was no reason to conclude that chambers judge was palpably wrong in his conclusion that payment of child support would not negatively affect level of daughter's income assistance benefit -- There was no basis upon which to interfere with finding of fact made by chambers judge that daughter's necessaries were not all paid by state -- Father's argument that income from trust and some of principal should be used for benefit of daughter was rejected given that trust was discretionary in nature and daughter was only one of three trustees.

Lougheed v. Lougheed (2007), 2007 BCCA 396, 2007 CarswellBC 1746, Levine J.A., Saunders J.A.,

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Thackray J.A. (B.C. C.A.); reversing in part (2005), 2005 CarswellBC 3689, 2005 BCSC 1921, Owen-Flood J. (B.C. S.C. [In Chambers]) [British Columbia]

FAM.IV.3.a.iii Subject Title: Family law

Classification Number: IV.3.a.iii

Support -- Child support under federal and provincial guidelines -- Application of guidelines -- Shared or split custody

More than 35 orders had been made in litigation since mid-1998 -- Order made in 2001 required father to pay $7,300 in child support and prohibited him from making further applications to Court until he had complied -- Case management judge was appointed in 2004 and heard number of applications -- In July 2005, case management judge allowed mother's application to move with child and deemed father to have 40 per cent of parenting time with child for support purposes regardless of actual access time -- Order was not appealed -- Case management judge heard cross-applications in 2006 in which father sought order for custody and mother sought extensive other relief -- Both were dismissed and case management judge ordered that neither party could make further application for year -- Mother appealed -- Appeal allowed in part -- Orders of case management judges were entitled to considerable deference -- File was very complicated because of many applications and orders -- Since date of order appealed from, there had been even more applications and orders and date in June 2007 had been set for viva voce hearing -- Best that could be done was to make points to help guide case management judge in further proceedings -- 2001 order forbidding further applications by father until he had paid arrears was extant and must be followed -- There was no place for "deeming" parenting time to be what it was not -- For purposes of calculating child support, percentage allocation of custody time must conform to actual evidence -- To permit court to deem lesser percentage of parenting time to be equivalent to 40 per cent threshold in Federal Child Support Guidelines would permit court to circumvent threshold set by Parliament and this must not be done.

C. (L.) v. C. (R.O.) (2007), 2007 ABCA 158, 2007 CarswellAlta 618, C. Fraser C.J.A., C. Hunt J.A., P. Costigan J.A. (Alta. C.A.) [Alberta]

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FAM.IV.3.b.ix Subject Title: Family law

Classification Number: IV.3.b.ix

Support -- Child support under federal and provincial guidelines -- Determination of award amount -- Extraordinary expenses for child's particular educational needs

Parties separated in 2003 and agreed they would have joint custody of two children of marriage, now aged 15 and 13 -- Children remained with father in home town and mother moved away -- In 2006, older child went to live with mother and in 2007 younger child did also, and father began voluntarily paying child support -- Mother applied to set child support and issue arose as to whether learning centre program to assist son with reading and math was appropriate extraordinary expense -- Learning centre expense was not appropriate at this time -- Learning centre was going to cost $12,000 over two to three year period -- Son's problem seemed to be lack of work ethic and not lack of ability -- Father's position was that son should try tutoring available before school with teacher and also available for small cost from other students -- Although learning centre may be necessary in future, son should focus on work at hand and on more discipline in approaching work -- Extra costs for such tutoring would be s. 7 expense under Federal Child Support Guidelines.

C. (C.L.) v. C. (D.J.) (2007), 2007 CarswellAlta 1040, 2007 ABQB 425, C.L. Kenny J. (Alta. Q.B.) [Alberta]

FAM.IV.3.c.iii Subject Title: Family law

Classification Number: IV.3.c.iii

Support -- Child support under federal and provincial guidelines -- Determination of spouse's annual income -- Imputed income

Parties separated in 2003 and agreed they would have joint custody of two children of marriage, now aged 15 and 13 -- Children remained with father in home town and mother moved away -- In 2004, parties entered into separation agreement which reserved child support to both parties for four years,

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after which mother was only to pay if her taxable income exceeded $35,000 per year -- In 2006, older child went to live with mother and in 2007 younger child did also, and father began voluntarily paying child support -- Father was self-employed businessman running trucking company servicing oil industry -- Two huge trucks were run 24 hours per day, seven days per week and father declared wages and dividends to himself -- Mother applied to set child support and claimed that father's declared income was not reflection of income available to him for child support purposes -- Father claimed yearly income of $127,000 -- Father had taken out $100,000 loan to pay mother her share of matrimonial property, had declared dividend of $50,000 this year to repay half of loan, and was going to declare further $50,000 next year to repay rest of loan -- Retained earning of company now stood at $402,000 -- Father's yearly income for support purposes should be $227,000 -- Money paid to mother for property settlement was borrowed from financial institution and had to be repaid -- Dividends declared by father to pay off loan were not funds available to pay support -- Also, $44,000 salary paid by father to his common law partner was not out of line with work she did for company -- However, although father's business was very capital intensive and cushion of retained earnings was necessary, retained earning did not have to be so high -- Sum of $100,000 of retained earning could be attributed to father's income while still leaving company with large enough cushion.

C. (C.L.) v. C. (D.J.) (2007), 2007 CarswellAlta 1040, 2007 ABQB 425, C.L. Kenny J. (Alta. Q.B.) [Alberta]

FAM.IV.3.d Subject Title: Family law

Classification Number: IV.3.d

Support -- Child support under federal and provincial guidelines -- Income over $150,000

Parties married in 1985, had two children, and separated in December -- Father earned $602,400 per year as partner in chartered accountant firm -- Mother was chartered accountant, but worked very reduced hours from home for most years after children were born and earned no income in recent years -- Parties had significant assets including valuable matrimonial home valued at $2,250,000, luxury vehicles, valuable stock portfolio, and led extravagant life style -- Since separation, father paid mother $10,000 per month combined spousal and child support, paid all expenses related to maintenance of matrimonial home where mother and children resided and paid all educational expenses of children -- At time of separation, elder son was 19 years of age and full-time university student in Quebec and younger child was 16 years of age and in last year of private high school -- Mother applied for child support --

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The Canadian Abridgment eDigests - Family Law - Western

Father took position that he would voluntarily continue payment of all educational expenses for children -- Application granted -- Father was ordered to pay $7,580 per month in child support -- Both children met statutory definition of child of marriage -- Mother required proper stream of child support in respect of both children rather than relying on largesse of father -- Mother provided what continued to be children's primary residence and older son spent at least five months per year in home -- Father's continued retention of financial control over sons would exacerbate household tensions.

E. (Y.J.) v. R. (Y.N.) (2007), 2007 CarswellBC 782, 2007 BCSC 509, M.E. Boyd J. (B.C. S.C.) [British Columbia]

FAM.IV.3.k.ii Subject Title: Family law

Classification Number: IV.3.k.ii

Support -- Child support under federal and provincial guidelines -- Practice and procedure -- Jurisdiction of courts

Transfer of court file not necessary given telephone and video conference facilities.

C. (C.L.) v. C. (D.J.) (2007), 2007 CarswellAlta 1040, 2007 ABQB 425, C.L. Kenny J. (Alta. Q.B.) [Alberta]

FAM.V.2.a.i Subject Title: Family law

Classification Number: V.2.a.i

Domestic contracts and settlements -- Validity -- Essential validity and capacity -- General principles

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Parties married in 1980 -- Husband and S entered into agreement in 1988 whereby husband accepted S's offer to work for company with potential to become 30 per cent partner if company met certain stipulated performance conditions in first three years -- Company did not meet performance conditions -- Husband and S entered into new arrangement in 1991 whereby husband would be given 30 per cent interest in company without requirement that any performance targets be met -- 1991 agreement was never reduced to writing and S did not transfer shares to husband -- Parties separated in 1994 and entered into separation agreement -- Section 27(3) of separation agreement provided that wife acknowledged that husband did not have any legal or beneficial interest in shares or assets of company -- Husband filed petition for divorce and parties were divorced in February 1996 -- Husband obtained judgment in action for wrongful dismissal which revealed that he had obtained substantial payout from sale of company and that he had testified in those proceedings that company had been holding 30 per cent interest in trust for him -- Wife filed Answer and Counter-Petition in divorce proceedings in August 1998 -- Trial judge declared that husband's interest in company was family asset and that wife was entitled to undivided half interest in asset as tenant in common -- Trial judge's order set aside s. 27(3) of separation agreement and declared that s. 27(3) did not operate as waiver by wife of any interest in company -- Husband appealed -- Appeal dismissed -- Husband was from and after discussions of September 1991 in position to call upon S to perform his end of bargain -- Trial judge did not err in finding that husband had enforceable contract with S as of their meeting in September 1991 pursuant to which husband was entitled to 30 per cent interest in company -- Husband's interest in company, which became chose in action in September 1991, was family asset because it was in nature of venture to which wife had contributed money or money's worth within meaning of s. 58(3) of Family Relations Act -- Trial judge's finding that parties were operating under common mistake that husband had no enforceable interest in company at time of separation agreement was supported by evidence and was correct -- Value of asset was over one million dollars and trial judge was entitled to rely on that fact in concluding that common mistake of parties was fundamental -- There was no basis for interfering with finding that parties were operating under common mistake as to husband's interest in company as of date of separation agreement or with conclusions that s. 27(3) of separation agreement should be set aside and husband's interest in company divided equally.

Hannigan v. Hannigan (2007), 2007 BCCA 365, 2007 CarswellBC 1576, Lowry J.A., Prowse J.A., Rowles J.A. (B.C. C.A.); affirming (2002), 29 R.F.L. (5th) 69, 2002 CarswellBC 1280, 2002 BCSC 719, McEwan J. (B.C. S.C.); additional reasons at (2003), [2003] B.C.J. No. 1083, 2003 CarswellBC 1097, 2003 BCSC 712, McEwan J. (B.C. S.C.) [British Columbia]

FAM.V.2.a.i

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Subject Title: Family law

Classification Number: V.2.a.i

Domestic contracts and settlements -- Validity -- Essential validity and capacity -- General principles

Parties began cohabiting in 1997 and disputed date of separation -- Woman was divorced mother of several children in receipt of social assistance benefits at start of cohabitation -- Man was retired professional engineer with significant assets, substantial income and suffering from cancer at time parties commenced cohabitation -- Woman and two children moved to man's farm and woman did not work outside home for bulk of relationship -- Man provided woman with cash for all household expenses except groceries and made woman joint account holder on credit union account -- Woman used child benefits to purchase groceries -- Parties entered into separation agreement dated April 6, 2004, under which parties acknowledged making full disclosure of income and assets -- Pursuant to agreement man paid woman lump sum of $31,000 in spousal support, based on woman's estimated income of $15,000 per annum and man's income of $67,000 per annum, and man gave woman 1990 vehicle -- During negotiation of agreement woman consulted with three lawyers who advised agreement was not fair -- Woman brought action for determination of validity of separation agreement -- Action dismissed -- No evidence supported woman's position that separation agreement was invalid on basis of absence of full disclosure of man's assets or on basis of duress -- Woman's evidence at trial showed knowledge of approximate total worth of man's property and various assets and amounted to admission that she knew what property man had -- Evidence from doctor witnessing woman's signature on agreement supported conclusion that woman signed agreement to get things over with and not because of physical or economic distress -- Woman failed to present convincing evidence that man took advantage of her through unconscionable use of power -- Fact that three lawyers thought agreement unfair did not amount to unconscionable agreement -- Woman chose to sign agreement after receiving lawyers' advice.

W. (C.L.) v. R. (S.U.) (2007), 2007 BCSC 453, 2007 CarswellBC 809, S.J. Shabbits J. (B.C. S.C.) [British Columbia]

FAM.V.2.a.ii Subject Title: Family law

Classification Number: V.2.a.ii

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The Canadian Abridgment eDigests - Family Law - Western

Domestic contracts and settlements -- Validity -- Essential validity and capacity -- Practice and procedure

Limitation of action -- Parties married in 1980 -- Husband and S entered into oral agreement in 1988 whereby husband accepted S's offer to work for company with potential to become 30 per cent partner if company met certain stipulated performance conditions in first three years of husband's employment -- Company did not meet performance conditions -- Husband and S entered into new arrangement in 1991 whereby husband would be given 30 per cent interest in company without requirement that any performance targets be met -- 1991 agreement was never reduced to writing and S did not transfer shares to husband -- Parties separated in 1994 and entered into separation agreement -- Section 27(3) of separation agreement provided that wife acknowledged that husband did not have any legal or beneficial interest in shares or assets of company -- Husband filed petition for divorce and parties were divorced in February 1996 -- Husband obtained judgment in action for wrongful dismissal -- Wife filed Answer and Counter-Petition in divorce proceedings in August 1998 -- Trial judge concluded that parties were labouring under common mistake that husband did not have enforceable interest in company at time they entered into separation agreement -- Husband appealed -- Appeal dismissed -- It would be fundamentally unfair to permit husband to raise limitation issue for first time on appeal -- It had been almost 12 years since divorce petition issued and 9 years since wife filed her Answer and Counter-Petition -- There had been numerous amendments to pleadings since then, 16-day trial in which issue was not raised and further 4-day hearing in which no mention was made of limitation issue -- Both parties approached issues on basis that Family Relations Act applied and both claimed relief pursuant to its provisions -- There was no principled reason for permitting husband to amend his pleadings at this late stage to plead or rely upon limitations issue.

Hannigan v. Hannigan (2007), 2007 BCCA 365, 2007 CarswellBC 1576, Lowry J.A., Prowse J.A., Rowles J.A. (B.C. C.A.); affirming (2002), 29 R.F.L. (5th) 69, 2002 CarswellBC 1280, 2002 BCSC 719, McEwan J. (B.C. S.C.); additional reasons at (2003), [2003] B.C.J. No. 1083, 2003 CarswellBC 1097, 2003 BCSC 712, McEwan J. (B.C. S.C.) [British Columbia]

FAM.V.2.a.iii Subject Title: Family law

Classification Number: V.2.a.iii

Domestic contracts and settlements -- Validity -- Essential validity and capacity -- Duress, fraud, undue influence and unconscionability

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The Canadian Abridgment eDigests - Family Law - Western

Parties married for eight months -- It was second marriage for both parties and there were no children of marriage -- Husband gave wife money and transferred title to three different apartments into wife's sole name -- Parties brought application for divorce, which was granted -- Husband brought action to determine apportionment of assets -- Action dismissed -- Intention to transfer was confirmed by fact that husband signed separation agreement -- No evidence of duress as husband was not threatened or pressured when agreement was signed -- Evidence indicated that decision to enter into agreement was joint decision -- Husband chose not to consult lawyer before signing agreement, but essential conditions of valid contract were present.

Zhu v. Li (2007), 2007 BCSC 1117, 2007 CarswellBC 1745, W.F. Ehrcke J. (B.C. S.C.) [British Columbia]

FAM.V.3.a.i Subject Title: Family law

Classification Number: V.3.a.i

Domestic contracts and settlements -- Effect of contract -- On division of family property -- General principles

Parties began cohabiting in 1997 and disputed date of separation -- Woman was divorced mother of several children in receipt of social assistance benefits at start of cohabitation -- Man was retired professional engineer with significant assets, substantial income and suffering from cancer at time parties commenced cohabitation -- Woman and two children moved to man's farm and woman did not work outside home for bulk of relationship -- Man provided woman with cash for all household expenses except groceries and made woman joint account holder on credit union account -- Woman used child benefits to purchase groceries -- Parties entered into separation agreement dated April 6, 2004, under which parties acknowledged making full disclosure of income and asset -- Pursuant to agreement man paid woman lump sum of $31,000 in spousal support, based on woman's estimated income of $15,000 per annum and man's income of $67,000 per annum and man gave woman 1990 vehicle -- During negotiation of agreement woman consulted with three lawyers who advised agreement was not fair -- Woman brought action for determination of entitlement to interest in joint bank accounts and investment certificates -- Action dismissed -- Valid and enforceable separation agreement clearly included all legal and equitable claims to parties' property and left no property unaddressed -- Woman's position that she was entitled to interest in joint account because at time of signing agreement she was still joint account holder had no merit -- Woman had no claim in trust to entitlement -- Woman suffered

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The Canadian Abridgment eDigests - Family Law - Western

no deprivation as result of domestic services and was adequately compensated throughout relationship.

W. (C.L.) v. R. (S.U.) (2007), 2007 BCSC 453, 2007 CarswellBC 809, S.J. Shabbits J. (B.C. S.C.) [British Columbia]

FAM.V.3.b.ii Subject Title: Family law

Classification Number: V.3.b.ii

Domestic contracts and settlements -- Effect of contract -- On spousal support -- Under provincial legislation

Parties began cohabiting in 1997 and disputed date of separation -- Woman was divorced mother of several children in receipt of social assistance benefits at start of cohabitation -- Man was retired professional engineer with significant assets, substantial income and suffering from cancer at time parties commenced cohabitation -- Woman and two children moved to man's farm and woman did not work outside home for bulk of relationship -- Man provided woman with cash for all household expenses except groceries and made woman joint account holder on credit union account -- Woman used child benefits to purchase groceries -- Parties entered into separation agreement dated April 6, 2004, under which parties acknowledged making full disclosure of income and assets -- Pursuant to agreement man paid woman lump sum of $31,000 in spousal support, based on woman's estimated income of $15,000 per annum and man's income of $67,000 per annum and man gave woman 1990 vehicle -- During negotiation of agreement, woman consulted with three lawyers who advised agreement was not fair -- Woman brought action for determination of entitlement to spousal support -- Action dismissed -- Woman's claim for spousal support under Act was not supported as she failed to establish she was spouse within definition of s. 1 of Act requiring application within one year after end of marriage-like relationship -- Separation agreement was dated April 6, 2004, and recited that parties had ceased to cohabit as common-law spouses after that date -- Valid and enforceable separation agreement required man to pay spousal support in fixed amount and he did so -- Amount was fair and reasonable given length of relationship and parties' means.

W. (C.L.) v. R. (S.U.) (2007), 2007 BCSC 453, 2007 CarswellBC 809, S.J. Shabbits J. (B.C. S.C.) [British Columbia]

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The Canadian Abridgment eDigests - Family Law - Western

FAM.V.3.c Subject Title: Family law

Classification Number: V.3.c

Domestic contracts and settlements -- Effect of contract -- On child support

Parties separated in 2003 and agreed they would have joint custody of two children of marriage, now aged 15 and 13 -- Children remained with father in home town and mother moved away -- In 2004, parties entered into separation agreement which reserved child support to both parties for four years, after which mother was only to pay if her taxable income exceeded $35,000 per year -- In 2006, older child went to live with mother and in 2007 younger child did also, and father began voluntarily paying child support -- Father was self-employed businessman running trucking company servicing oil industry -- Two huge trucks were run 24 hours per day, seven days per week and father declared wages and dividends to himself -- Mother applied to set child support and father claimed that mother should have been paying child support by 2005 -- Mother was to pay child support from 2006 for two children while both were with father and for one, in proportion to parties' incomes, while one child was still with father -- Separation agreement was clear that support would only be paid by mother when her yearly income reached $35,000, which it had not done in 2005 -- In best interests of children, neither party could rely on four-year time period in separation agreement to absolve them from support now -- Also, separation agreement did not contemplate current circumstances -- From time that both children were living with mother, father was to pay support for two children based on his income of $227,000.

C. (C.L.) v. C. (D.J.) (2007), 2007 CarswellAlta 1040, 2007 ABQB 425, C.L. Kenny J. (Alta. Q.B.) [Alberta]

FAM.V.6.a Subject Title: Family law

Classification Number: V.6.a

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The Canadian Abridgment eDigests - Family Law - Western

Domestic contracts and settlements -- Variation of terms -- General principles

Parties began cohabiting in 1997 and disputed date of separation -- Woman was divorced mother of several children in receipt of social assistance benefits at start of cohabitation -- Man was retired professional engineer with significant assets, substantial income and suffering from cancer at time parties commenced cohabitation -- Woman and two children moved to man's farm and woman did not work outside home for bulk of relationship -- Man provided woman with cash for all household expenses except groceries and made woman joint account holder on credit union account -- Woman used child benefits to purchase groceries -- Parties entered into separation agreement dated April 6, 2004, under which parties acknowledged making full disclosure of income and assets -- Pursuant to agreement man paid woman lump sum of $31,000 in spousal support, based on woman's estimated income of $15,000 per annum and man's income of $67,000 per annum and man gave woman 1990 vehicle -- During negotiation of agreement woman consulted with three lawyers who advised agreement was not fair -- Woman brought action for determination of validity of separation agreement and sought variation of terms pursuant to s. 65 of Family Relations Act -- Action dismissed -- Variation of separation agreement pursuant to s. 65 of Act was not warranted as woman failed to establish she was spouse within definition of s. 1 of Act, requiring application within one year after end of marriage-like relationship -- Abundant evidence supported conclusion that date of separation agreement was date when parties ceased to cohabit as common-law spouses -- Separation agreement was dated April 6, 2004, and recited that parties had ceased to cohabit as common-law spouses after that date -- Action commencing April 14, 2005, was not made within one-year requirement.

W. (C.L.) v. R. (S.U.) (2007), 2007 BCSC 453, 2007 CarswellBC 809, S.J. Shabbits J. (B.C. S.C.) [British Columbia]

FAM.VIII.4.c Subject Title: Family law

Classification Number: VIII.4.c

Divorce -- Bars to divorce -- Collusion

Parties entered into civil marriage in Canada in 2006 with further cultural marriage scheduled to take place in Pakistan at end of year -- Also following cultural tradition parties did not consummate marriage since that was to happen only after cultural marriage -- Husband was Canadian citizen and wife was in Canada on student visa which expired at end of 2006 at which point she had to return to Pakistan --

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The Canadian Abridgment eDigests - Family Law - Western

Marriage was arranged by parties' families and civil marriage took place first so that husband could start sponsorship procedures so wife could come to Canada after cultural marriage and parties would not have to endure long separation waiting for her immigration papers -- In months following civil ceremony husband had second thoughts as to parties' compatibility and despite mediation by family member, decided that cultural marriage should not take place -- Husband filed for divorce on grounds of parties having lived separate and apart for one year -- However, at time of filing parties had not even been married one year and had never lived together -- Immigration sponsorship was not completed -- Divorce was granted -- Section 11 of Divorce Act required court to satisfy itself that there is no collusion relating to divorce application and dismiss application if there is -- Collusion requires agreement or conspiracy to which applicant for divorce is either directly or indirectly a party and agreement must be for purpose of subverting administration of justice -- In this case, although parties never lived together before or after marriage, marriage was not sham, and even if it was, case law generally establishes that it would be valid -- In any event, marriage was not entered into for fraudulent purpose and there had been no collusion with respect to divorce application -- Accordingly, in these circumstances, divorce should be granted.

Merchant v. Dossani (2007), 2007 CarswellAlta 988, 2007 ABQB 487, D. Lee J. (Alta. Q.B.) [Alberta]

FAM.IX.1.b Subject Title: Family law

Classification Number: IX.1.b

Custody and access -- Jurisdiction of courts -- Discretion regarding scope of inquiry

More than 35 orders had been made in litigation since mid-1998 -- Order made in 2001 required father to pay $7,300 in child support and prohibited him from making further applications to Court until he had complied -- Case management judge was appointed in 2004 and heard number of applications -- In July 2005, case management judge allowed mother's application to move with child and deemed father to have 40 per cent of parenting time with child for support purposes regardless of actual access time -- Order was not appealed -- Case management judge heard cross-applications in 2006 in which father sought order for custody and mother sought extensive other relief -- Both were dismissed and case management judge ordered that neither party could make further application for year -- Mother appealed -- Appeal allowed in part -- Orders of case management judges were entitled to considerable deference -- File was very complicated because of many applications and orders -- Since date of order appealed from, there had been even more applications and orders and date in June 2007 had been set for viva voce

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The Canadian Abridgment eDigests - Family Law - Western

hearing -- Best that could be done was to make points to help guide case management judge in further proceedings -- 2001 order forbidding further applications by father until he had paid arrears was extant and must be followed -- Access arrangements would be considered in June 2007 based on additional evidence -- Given orders made since order under appeal and imminent viva voce hearing, merits of access would not be dealt with at time -- At hearing in June, child support and access issues should be determined in accordance with principles.

C. (L.) v. C. (R.O.) (2007), 2007 ABCA 158, 2007 CarswellAlta 618, C. Fraser C.J.A., C. Hunt J.A., P. Costigan J.A. (Alta. C.A.) [Alberta]

FAM.IX.2.d.i Subject Title: Family law

Classification Number: IX.2.d.i

Custody and access -- Factors to be considered in custody award -- Maintenance of stable environment -- General principles

Mother was substance abuser who gave birth to father's child while seeing another man -- Child's maternal grandmother cared for child without realizing he was father's child -- Mother resumed relationship with father after parentage was confirmed but child remained with grandmother -- Grandmother tried living with mother and father but conflicts arose and grandmother left unexpectedly with child -- Father successfully applied for interim custody of child on ex parte basis but had relied on false affidavit -- Father's interim custody was later confirmed but made subject to access by grandmother -- Grandmother applied for custody of child -- Application granted -- Living with grandmother in secure, quiet, and stable environment was in child's best interest but father was to have regular and generous access -- Grandmother had been solid and reliable caregiver for extended period of time -- Grandmother worked regularly and provided good home for herself, child, another daughter, and another grandchild -- Grandmother undoubtedly loved mother and child deeply -- Grandmother did not allow alcohol in her home and was strict with mother -- Conflict and substance abuse in parents' home was undesirable -- Father was self-employed but was financially dependent on mother's social assistance -- Father also had significant child support arrears relating to other children.

M. (S.) v. J. (A.) (2007), 2007 CarswellNun 4, 2007 NUCJ 4, B. Browne J. (Nun. C.J.) [Nunavut]

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The Canadian Abridgment eDigests - Family Law - Western

FAM.XX.1.a Subject Title: Family law

Classification Number: XX.1.a

Costs -- In family law proceedings generally -- General principles

Wife's appeal of order apportioning contingent future tax liability of husband between parties and setting amount of spousal support was allowed, however her appeal from entitlement to portion of income tax reassessment, entitlement to income tax refund, adjustment in division of assets to take account of payment of certain legal fees paid and calculation of husband's income for purpose of child support was dismissed -- Wife was not successful on fresh evidence motion heard at same time as appeal -- Parties made submissions as to costs -- Costs of appeal, with exception of fresh evidence motion, was to be borne by each party, husband was entitled to his costs of fresh evidence motion, and order as to costs of trial proceedings remained unaltered -- Event favoured order that each party bear his or her own costs -- Success of appeal was divided and each party enjoyed substantial success -- Disparate earning power between husband and wife was not such that order other than usual one in circumstances of truly mixed success should have applied -- Disparate earning power had already been accounted for in support orders made and in division of assets -- Husband was entitled to costs of fresh evidence motion brought by wife given that it was extra and unnecessary step in appeal -- Result at trial was not so substantially in favour of wife so as to justify altering costs order.

S. (M.) v. S. (W.) (2007), 238 B.C.A.C. 305, 2007 BCCA 187, 2007 CarswellBC 1648, 393 W.A.C. 305, Levine J.A., Saunders J.A., Thackray J.A. (B.C. C.A.); additional reasons to (2006), 380 W.A.C. 100, 230 B.C.A.C. 100, [2006] 11 W.W.R. 119, 2006 BCCA 391, 56 B.C.L.R. (4th) 245, 36 R.F.L. (6th) 13, [2006] B.C.J. No. 2020, 2006 CarswellBC 2214, Levine J.A., Saunders J.A., Thackray J.A. (B.C. C.A.); reversed in part (2005), 2005 CarswellBC 1535, 2005 BCSC 939, [2005] B.C.J. No. 1447, Romilly J. (B.C. S.C.) [British Columbia]

FAM.XX.1.a Subject Title: Family law

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The Canadian Abridgment eDigests - Family Law - Western

Classification Number: XX.1.a

Costs -- In family law proceedings generally -- General principles

Father and mother married in 1991, had three children, and divorced in 2002 -- In proceedings brought by wife involving valuation of matrimonial home and child support, wife was successful and husband appealed -- Wife was successful on every ground of appeal -- On issue of costs on appeal, husband claimed that he could not afford to pay costs and pay child support on his teacher's salary -- Husband claimed that his financial situation had deteriorated steadily between time order was made at trial and hearing of appeal, resulting in financial hardship for him -- Husband was to bear costs of his unsuccessful appeal -- In absence of misconduct or good reason particular to case, costs in matrimonial proceedings as in other civil proceedings should follow event unless court orders otherwise -- What constitutes good reason falls to discretion of court, and financial circumstances of parties can be relevant consideration for court to occasionally depart from general rule if order would cause undue financial hardship -- Simple overriding principle is that discretionary exceptions to general rule must be made judicially -- Wife succeeded on every ground of appeal and earned much less than husband so was in no better position to pay costs on appeal than he was -- Husband had filed serial applications and affidavits in trial court and in appeal court had filed factum and lengthy fresh evidence materials, and filed another appeal arising out of same proceeding -- All of husband's steps resulted in costs to wife and award of costs reflected those circumstances -- Usual order was appropriate.

Scott v. Scott (2007), 2007 CarswellBC 1675, 2007 BCCA 392, Lowry J.A., Newbury J.A., Ryan J.A. (B.C. C.A.); additional reasons to (2006), 232 B.C.A.C. 160, 385 W.A.C. 160, 61 B.C.L.R. (4th) 9, 32 R.F.L. (6th) 46, 2006 CarswellBC 2736, 2006 BCCA 504, Lowry J.A., Newbury J.A., Ryan J.A. (B.C. C.A.); affirming (2004), [2004] B.C.J. No. 1812, 2004 CarswellBC 1992, 2004 BCSC 1155, Gill J. (B.C. S.C.) [British Columbia]

Copyright © Carswell

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