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Family Lawyers Vancouver

Our top rated* Vancouver separation agreement lawyers routinely negotiate and mediate Vancouver separation agreement cases. We will negotiate full disclosure in any case involving a Vancouver separation agreement and explain to our clients how fairly negotiated agreements need to be followed to avoid any nasty surprises. Unfair Vancouver separation agreement cases permit the court options to set aside or vary the Vancouver or BC separation agreement for noncompliance with rules of fairness and principles under our Family Law Act and divorce legislation.

Vancouver Separation Agreement Lawyers 604-602-9000

It pays to hire Vancouver’s top rated* family law firm as awarded by Top Choice Awards again this year for a total of 4 wins in the past 5 years and the last 3 years in a row to help you properly negotiate and draft a Vancouver separation agreement. Call us toll free at 1-877-602-9900.

What happens when one party refuses to follow a Vancouver separation agreement? Hint – It Can Lead To Nasty Results!

Our Vancouver separation agreement lawyers know that a party who breaches (refuses to follow) a Vancouver separation agreement can be the subject of a claim for damages for breaking the deal that can also include being ordered to comply with the terms of the deal or allowing the other party to exercise the right to make claims that were waived under the original Vancouver separation agreement.

What options are available to the party who wants the Vancouver separation agreement enforced?

In the Vancouver separation agreement case of Owen v Owen the Vancouver separation agreement by a husband who had a decline in income related to a poorly performing stock market.

As you will see when you read the judgment below the wife was allowed to come back after the husband who had breached the contract, caused her financial distress and forced her to hire lawyers to seek a higher amount of support than she had originally bargained for.

The husband unsuccessfully tried to pay up the arrears of support at the last minute but the court was unimpressed and ordered him to pay more as he had breached the deal and deprived the wife of what she had bargained for in the original Vancouver separation agreement.

Repudiation

[12]         As stated earlier, starting in October 2008, the respondent failed to pay the claimant $20,000 per month spousal support. He paid varying amounts to her based on 50% of what he said came through his account monthly in the way of commissions and capital gains.

[14]         Both parties rely on the British Columbia decision of Smith v. Lau, 2004 BCCA 443, 243 D.L.R. (4th) 236, for the law applying to the breaches of obligations under matrimonial agreements.

[15]         Newbury J.A., speaking for the majority, acknowledged that a commercial contract brought different considerations to bear than one between former spouses or common law partners. In addition, the court retains jurisdiction to vary the terms between the parties insofar as such terms affect children or support. However, Newbury J.A. also stated that family agreements are not immune from basic principles of contract law, including those relating to repudiation and fundamental breach.

[16]         In McVeetors v. McVeetors, 15 D.L.R. (4th) 105, 43 R.F.L. (2d) 113, the Ontario Court of Appeal (leave to appeal to the SCC refused) relied on English authority when it found that separation agreements, in particular, could and should be construed according to principles of general contract law. At para. 15 the Court stated:

Separation agreements in form and effect are similar to other contracts, as Lord Atkin said in Hyman v. Hyman, [1929] A.C. 601 at 625-6:

Full effect has therefore to be given in all Courts to these contracts as to all other contracts. It seems not out of place to make this obvious reflection, for a perusal of some of the cases in the matrimonial Courts seems to suggest that at times they are still looked at askance, and enforced grudgingly. But there is no caste in contracts. Agreements for separation are formed, construed and dissolved and to be enforced on precisely the same principles as any respectable commercial agreement, of whose nature indeed they sometimes partake.

[17]         Finally, in Freake v. Freake, 2004 NLCA 39, 50 R.F.L. (5th) 1 at para. 51, Cameron J.A. allowed a wife, in a case where her husband had failed to make spousal support payments contemplated in an agreement, to repudiate the agreement for fundamental breach, terminate future performance, and sue for damages suffered to date.

[18]         Whether a contract has been repudiated and the repudiation accepted is a mixed question of law and fact.

[19]         Levine J.A., dissenting as to result only in Smith, referred to this statement of Fridman in The Law of Contract in Canada, 3d ed. (Toronto, Ontario: Thomson Carswell, 1994) at p. 570:

The basic test comes down to the simple, if not obvious one of deciding what is the real purpose of the contract, the true benefit intended to be obtained by the injured party, the extent to which the misperformance by the defendant goes beyond falling short of what was desired by the victim of the breach and involves the complete denial to him of any benefit from the performance that was provided.

[20]         Levine J.A. concluded with the statement that:

The test is not what the “misperforming” party intended, but whether [that party’s] conduct amounted to a complete denial of any benefit of the agreement to the other party.

[21]         The fact here is that the respondent’s conduct resulted in a denial of the benefit of the contract to the claimant. As counsel for the claimant submitted, it was not only the quantum of the spousal support that was a benefit to the claimant under the Agreement, it was the certainty and security of setting a specific sum which the claimant could expect to receive every month for the next three years. From that she could budget, invest and control her own financial resources and make decisions independently of the respondent. Instead, the respondent continued to control her by controlling the extent to which he unilaterally decided he would support her. The claimant was expected to gratefully receive whatever the respondent chose to pay, as though his obligations under the Agreement carried no weight.

[22]         The respondent submits that the Agreement provided additional benefits to the claimant in areas of custody, access and property division from which he did not deprive her. However, the evidence establishes that there was never any dispute regarding custody or access to S who was 15 or 16 years old at the time. The equal division of the family assets did not provide a “benefit” to the claimant. In fact, it was the respondent who received the benefit of an equal division of family assets without exposure to a reapportionment of family assets or compensation order. The respondent also received a benefit in that the amount of spousal support in the Agreement was $5,000 per month less than that which Master Taylor had ordered on an interim basis.

[23]         I accept the evidence of the claimant that the reason she consented to the Agreement was for the sake of certainty, finality and the end of legal proceedings. Instead, she found herself embroiled with the respondent in an ongoing dispute trying to collect the support payments. She continued to incur legal costs in opposing the respondent’s application to cancel the arrears and reduce spousal and child support payments. She lost the opportunity to manage and invest the compensatory portion of her spousal support. It was only when the claimant gave up trying to enforce the Agreement and advised the respondent that she accepted his repudiation that the respondent offered to make good on the Agreement.

[24]         In my opinion, it is too late for the respondent to offer to pay the arrears under the Agreement because the claimant has lost three years of certainty, security, investment opportunity and litigation-free living. She is entitled to treat the respondent’s breaches as a repudiation of the Agreement because these breaches substantially deprived her of the fundamental benefit of the contract.

[25]         I am fully aware that in an arm’s length commercial contract, one party’s expectations may be dashed by a breach of performance by the other party, and yet the contract is not considered to be repudiated. However, in my opinion, the dynamics in a family law contract are somewhat different in this regard. What might be described as the esoteric benefits to a non-earning payee spouse of certainty, security and escape from “purse control” of the other spouse, can sometimes, as in this case, form the fundamental basis of an agreement. The removal of these benefits by the payor spouse can constitute a breach that goes to the root of the contract, is not compensable in damages, and amounts to a repudiation of the agreement.

[26]         I find that the non-performance by the respondent of his obligations under the Agreement amount to a repudiation of it and that the claimant was entitled to and did accept the repudiation. Thus as of June 30, 2011, the date upon which the claimant elected to accept the repudiation, the Agreement was no longer enforceable between the parties with respect to future obligations under the Agreement.

Call Our Team For Help With Your Vancouver Separation Agreement

If you are negotiating an important Vancouver separation agreement you need lawyers who negotiate, enforce and seek to vary Vancouver separation agreements on a daily basis. Hire one of the seasoned lawyers at Vancouver’s largest and most highly rated* family law firms.

Call us at 1-877-602-9900 to meet with us at any of our 6 offices located across BC and in Calgary Alberta to obtain the best possible result in a Vancouver separation agreement case.

*Top Choice Award (2014, 2016, 2017 2018, 2019), Top rated reviews on Google, Yelp, threebestrated, lawerratingz.com. Read more about our awards.