Why do I need a lawyer? The case of d.o.d v. n.v.d 2016 bcsc 458

Why do I need a lawyer?  

D.O.D v. N.V.D 2016 BCSC 458

Registry: Terrace

Judge: Mr. Justice Punnett

Date: March 16, 2016

Main issues: initially dad/ the claimant was only seeking a divorce as he was relying on a separation agreement where he thought everything (spousal support, property division etc.) had been settled. Mom/ the respondent made a claim for spousal support, a division of family assets and sought to set aside the separation agreement. The Court set aside the agreement.

Facts:  The parties began living together in 1999, they married October 15, 2004 and separated April 1, 2008. They had two children, one born October 30, 2003 and a second child born on April 1, 2008 .  

Employment History:  dad/ the claimant worked for Rio Tinto Alcan full time as of 2003 and became a journeyman millwright on January 20, 2011. Mom/ the respondent had worked at Athletes World, a video store and was making $8 per hour per working 3-4 days per week at a beer and wine store. Mom stopped working at dads request so that he could work overtime, she didn’t start back working again until after the separation, eventually working full-time for Winners.

Here is where a lawyer should have come in: After their separation in April 2008 the parties prepared their own separation agreement based on a pre-printed form.

Discussion:

Ø  Mom/ the respondent was severely depressed and suicidal at the time she signed the separation agreement (she was committed under the mental health on July 21, 2008).

Ø  She asserts the claimant told her what to fill in while the dad/ the claimant states they jointly discussed matters and completed the form accordingly

Ø  The parties failed to delete inapplicable portions of the agreement and they failed to delete portions that gave the option of mom/ the respondent or dad/ claimant fulfilling certain obligations.

Ø  The provisions relating to their home and debts are completed in such a fashion that they are contradictory.

Ø  The respondent agreed not to seek spousal support.

Ø  The claimant’s employment pension was not addressed, as neither party was aware that it was divisible.

Conclusion: The Court cited H.J.S. v. K.C.S., 2013 BCSC 998,

Mr. Justice Barrow addressed the applicable principles relating to setting aside a separation agreement as follows:

[40] In Miglin, the court was concerned with the effect of a prior separation agreement on a subsequent application for spousal support. Notwithstanding that specific context, the decision has application more generally to separation agreements. That was made clear by the court's decision in Rick v. Brandsema at paragraph 39. Miglin established a two-stage analysis for the assessment of agreements in the context of spousal support. In the first stage "the court should first look to the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it" (Miglin at paragraph 80). This inquiry involves a consideration of both the circumstances surrounding the signing of the agreement and an examination of the degree to which the agreement complied with the applicable legislation.

[41] The second stage of the Miglin analysis is a result of s. 15.2 of the Divorce Act. Section 65 of the Family Relations Act, if invoked, provides a basis for a second-stage analysis in relation to a separation agreement dealing with the division of property. It provides that if "the provisions for division of property between spouses under ... their marriage agreement ... would be unfair" having regard to various factors set out in the section, then, on application, the court can order a division different than the presumptive equal division or a reapportionment. The unfairness may lie in the agreement assessed as of the time the agreement was drawn or in its subsequent operation (see generally D.K.N. v. M.J.O., 2003 BCCA 502).

The court set aside the settlement agreement. Mom/ the respondents mental health was not determinative in setting aside the settlement agreement, rather:

[35] The evidence does not establish the respondent was not competent to sign the agreement nor that her capacity was diminished to a significant degree or that as a result she was vulnerable when the agreement was signed. However, the only significant asset of the parties at the time of the agreement was the claimant’s pension and as a result of both parties failing to appreciate it could be divided it was not included in the agreement. In addition, the purported agreement that there would be no spousal support payable ignored the history of the marriage, the income of the claimant, the respondent’s lack of income and her need. It fails to be in substantial compliance with the factors and objectives of the Divorce Act: Miglin v. Miglin, 2003 SCC 24. In particular it fails to consider the “conditions, means, needs and other circumstances of each spouse” and fails to recognize “any economic advantages or disadvantages to the spouses arising from the marriage breakdown”. In addition it does not apportion “any financial consequences arising from the care of any child of the marriage” nor does it relieve “any economic hardship of the spouses”. (Divorce Act. s 15.2). As a result I find the agreement was unfair. The agreement is set aside.