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In This Volume

  • 93 (1) This section applies if spouses have a written agreement respecting division of property and debt, with the signature of each spouse witnessed by at least one other person.
  • (2) For the purposes of subsection (1), the same person may witness each signature.
  • (3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:
    • (a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
    • (b) a spouse took improper advantage of the other spouse’s vulnerability, including the other spouse’s ignorance, need or distress;
    • (c) a spouse did not understand the nature or consequences of the agreement;
    • (d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.
  • (4) The Supreme Court may decline to act under subsection (3) if, on consideration of all of the evidence, the Supreme Court would not replace the agreement with an order that is substantially different from the terms set out in the agreement.
  • (5) Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:
    • (a) the length of time that has passed since the agreement was made;
    • (b) the intention of the spouses, in making the agreement, to achieve certainty;
    • (c) the degree to which the spouses relied on the terms of the agreement.
  • (6) Despite subsection (1), the Supreme Court may apply this section to an unwitnessed written agreement if the court is satisfied it would be appropriate to do so in all of the circumstances.

2011-25-93, effective March 18, 2013 (B.C. Reg. 131/2012).

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Certificate of Pending Litigation May Be Filed

Note s. 215(6) of the Land Title Act which provides:

215 (6) A party to a proceeding for an order under the Family Law Act respecting the division of property may register under this section a certificate of pending litigation in the prescribed form in respect of any estate or interest in land the title to which could change as an outcome of the proceeding.

Registering Certificate of Pending Litigation in Family Matters, Form 33

The director has approved two versions of Form 33 for registering a certificate of pending litigation in family matters. Proceedings commenced after the coming into force of the Family Law Act (March 18, 2013) must use Form 33 (Family Law Act). Proceedings to enforce, set aside or replace an agreement respecting a property division made before March 18, 2013 and proceedings respecting a property division started under the Family Relations Act must use Form 33 (Family Relations Act). The use of Form 33 is compulsory.

Submissions

On the Form 17 Charge, Notation or Filing, select Nature of Interest, Certificate of Pending Litigation, and attach an image of the Form 33 and originating process.

The Certificate of Pending Litigation receives preliminary examination prior to receiving an application number, date and time.

CASE LAW

The following cases were decided under s. 65 of the Family Relations Act (repealed S.B.C. 2011, c. 25, s. 259). Note that s. 93 of the Family Law Act delineates specific circumstances under which the court may set aside or replace a spousal agreement with respect to the division of property and that the “triggering event” is the date of separation under s. 81 of the Family Law Act.

See also s. 31 of the Land Title Act and the cases cited there with respect to the priority of claims and the effect of registration.

Priority of Interests under the Family Relations Act

A wife obtained a s. 57 declaration under the Family Relations Act and filed a lis pendens against the matrimonial home before the registration against title by Revenue Canada of judgments against the husband. In spite of these judgments, the court was able to reapportion the spouses’ interests in the matrimonial home entirely in the wife’s favour. The wife’s interest in the matrimonial home arose as at the date of the triggering event. The scheme of the Family Relations Act dictates that a reapportionment under s. 65 of that Act be made as of that time. As a result, Revenue Canada’s judgments filed after the triggering event attached only to the interest that the husband had in the property after the triggering event. If this analysis was incorrect, the combined effect of s. 31 of the Land Title Act and ss. 56 and 65 of the Family Relations Act is to “give priority” to a spouse’s interest “back to the date when the lis pendens is filed” (Hall v. Hall, 1990 CanLII 724 (BC SC).

Where an interest in property is established by a reapportionment of interests under s. 65 of the Family Relations Act, the reapportionment takes effect from the date of the triggering event under s. 56 of the Act. In this case, the spouse applying for reapportionment of interests in the matrimonial home registered a lis pendens before Revenue Canada registered a judgment against her husband’s interest in the home. However, both the lis pendens and the judgment were registered before the triggering event. The court held that the judgment attached to the husband’s interest before the date of the triggering event, with the result that the court could only reapportion his interest subject to the judgment (Antenen v. Antenen (Guardian ad Litem of), 1992 CanLII 204 (BC SC)).