Vancouver Family Settlement Consent Order Lawyers deal with cases where parties seek to enforce and even sometimes vary a Consent Order designed to finally settle a family case. Our new Family Law Act places an emphasis on out of court settlements and dispute resolution. In today’s blog from Lorne N. MacLean, QC we learn that a Consent Order is even harder to set aside than a separation agreement is.
A recent BC Supreme Court decision of K v. P clearly explains the current state of the law. The takeaway is that the time to ensure a settlement is fair is before you agree to the Consent Order not after. In the new case, the wife said she was stressed, did not understand the deal because of medical issues, the Order was substantially unfair, and there was non-disclosure by her husband.
Our top-rated* Vancouver Family Settlement Consent Order Lawyers understand the options for setting aside agreements and Consent Orders are limited and making sure all contingencies are properly considered before you sign on the dotted line is crucial. MacLean has helped establish the law for what agreements will be enforced in wins in the BC Court of Appeal in Dominak. We have 6 offices across Western Canada and are Vancouver’s repeat winner as Best Vancouver Family Law Firm. Call 1 877 602 9900
[32] The Court has limited jurisdiction to vary or set aside such an order. While the claimant cites s. 93 of the FLA in her notice of application, which provides that a court may set aside agreements respecting property division in certain circumstances, that section does not apply to court orders: A.M. v. M.S., 2017 BCSC 2061 at para. 49.
Vancouver Family Settlement Consent Order Lawyers – Limited Options
So what are the narrow circumstances under which family clients and Vancouver Family Settlement Consent Order Lawyers can set aside a court order, as opposed to varying it, if there has been a material change in circumstances?
Here is the test:
[33] In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the circumstances in which a consent order may be varied or set aside. The Court said at para. 12:
[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent order will operate as a final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract: McCowan v. McCowan (1995), 14 R.F.L. (4th) 325 (Ont. C.A.); Monarch Construction Ltd. v. Buildevco Ltd. (1988), 26 C.P.C. (2d) 164 (Ont. C.A.); Huddersfield Banking Company Limited v. Henry Lister & Son Limited (1895), 2 Ch. 273 (C.A.); Dawe v. Dawe (1985), 45 R.F.L. (2d) 254 (B.C.S.C.); aff’d (1986), 2 R.F.L. (3d) 430 (B.C.C.A.); and T.(T.L.A.) v. T.(W.W.) (1996), 24 R.F.L. (4th) 51 which leaves unanswered the issue of reopening a consent order under s. 68 of the Family Relations Act.
[Emphasis added.]
[34] Similarly, in Pond v. Pond, 2017 BCCA 243, the Court of Appeal said at para. 2:
[2] …The kinds of grounds on which any contract may be set aside – fraud, undue influence, duress, coercion – are also required for setting aside a consent order in general. As stated in Racz v. Mission (District) (1988), 22 B.C.L.R. (2d) 70 (C.A.):
A court… has inherent jurisdiction to set aside a judgment or order:
a) which has been obtained by fraud, collusion or perjury;
b) which constitutes an abuse of process;
c) on the ground that fresh evidence has been discovered; or
d) which was obtained by consent on a ground which would invalidate a compromise not contained in a judgment or order.
[36] In E.J.M. v. W.V.T., 2003 BCSC 918, the court considered a similar application to set aside a consent order on the basis of one party’s alleged stress and anxiety. Mr. Justice Maczko cited Shackleton and then said the following at paras. 12, 40 and 42:
[12] …once an agreement is incorporated in a court order, the scope for setting aside or varying the provisions is very limited. The authorities of this court are quite clear that the effect of such an order is to render the matter res judicata, subject to the common law defences.
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Vancouver Family Settlement Consent Order Lawyers – Stress Not Enough
Vancouver Family Settlement Consent Order Lawyers know family cases are stressful and expensive. This is a reason why settlements are encouraged at an early stage. The sooner negotiations can take place after full disclosure the better.
[40] The plaintiff also alleges that she was suffering from a mental condition and was under psychiatric care at the time she negotiated the agreement. She says that she was suffering from stress and anxiety, which induced her into reaching an unfair settlement. It can always be alleged that a person going through a divorce will be suffering from stress and anxiety. It would not be unusual for people going through divorce to suffer from stress and anxiety. As stated in [Miglin v. Miglin, 2003 SCC 24] at [para.] 82:
The Court held that recognition of the emotional stress of separation or divorce should not be taken as giving rise to a presumption that parties in such circumstances are incapable of assenting to a binding agreement. Our Vancouver Family Settlement Consent Order Lawyers know having both spouses obtain independent legal advice is important. Many spouses worry about letting their spouses talk to a lawyer for fear the lawyer will encourage their spouse to ask for more. This strategy usually backfires by giving the unrepresented spouse an out on setting aside the agreement.
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[42] As well, the plaintiff was well represented by experienced and competent counsel, Ms. Kathryn Sainty. Preston J. addressed the concept of independent legal advice in [Schlenker v. Schlenker, 72 B.C.L.R. (3d) 203 (S.C.)]. He said at [para.] 9:
Independent legal advice acts as a strong counterweight to the otherwise unequal bargaining positions that often result from marriage and its breakdown. A person who is properly advised of his or her legal rights and of the significance of a contemplated agreement is less likely to be a victim of duress and undue influence or to enter into an unfair bargain [citations omitted].
Vancouver Family Settlement Consent Order Lawyers – ILA Matters
Having a senior Vancouver Family Settlement Consent Order Lawyers provide independent legal advice before an agreement is signed may well be fatal to any claim to set aside an agreement. Here is what the Court said on this point:
If an unfair agreement is entered into after both parties have obtained independent legal advice, it becomes difficult for one of the parties to allege duress, undue influence, unconscionability, etc.
[37] See as well: R.L.S. v. D.C.M., 2002 BCSC 1794 at para. 86.
[38] I do not doubt that the claimant was under considerable stress at the time the Final Order was reached. As noted by Justice Maczko in E.J.M., marital breakdown is an inherently stressful process, particularly when it results in litigation. It also places significant financial stress on the parties, both in the form of legal fees and the demands of supporting two households instead of one.
[39] I also accept the claimant’s evidence, and the supporting medical evidence, that she has been diagnosed with ADHD and depression. However, she has not established that either the degree of stress she was experiencing or her medical conditions rendered her incapable of understanding and freely consenting to the terms of the Final Order.
[40] While there is some reference in the medical evidence to cognitive difficulties relating to her condition, it does not go so far as to indicate incapacity on her part. Nor is there any evidence that issues of capacity were ever raised with the respondent or his counsel.
[41] Both parties were represented throughout the trial and settlement negotiations by experienced and competent counsel. There is no evidence from the claimant’s then counsel indicating any concerns about the claimant’s capacity to understand the issues or to issue instructions.
[42] There is also the fact that the claimant only seeks to set aside certain terms of the Final Order rather than the Order in its entirety. I do not accept that the terms that she does not challenge, for example dealing with parenting, were easier to understand than the financial terms with which she now takes issue.
Vancouver Family Settlement Consent Order Lawyers – Stress Is Expected
Vancouver Family Settlement Consent Order Lawyers understand a family law case is stressful. Our Vancouver Family Settlement Consent Order Lawyers will do our best to help you manage your stress and get professional support from counsellors and coaches. The judge noted ending the stress on parties by encouraging fair settlements is a prime directive of our new Family aw Act.
[43] Lastly, it is apparent on the evidence that both parties were experiencing financial stress at the time of the Final Order, including the stress of significant legal fees. However, rather than supporting an order setting aside or varying aspects of the Final Order, this underscores why it was in the parties’ best interests to reach a comprehensive settlement.
[44] I, therefore, decline to set aside any terms of the Final Order on the basis of the claimant’s alleged incapacity.
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