Setting Aside Final Family Orders lawyers at MacLean Law help you get justice when you have a reasonable excuse for not being aware of an appearance for a final family order. We warn all our high net worth family law clients to be aware of any attempts to serve them and not to stick their head in the sand hoping a family law case will go away. Delay is never a good plan in a high net worth family law disputes. Hiring Vancouver’s top rated family lawyers really helps you avoid disaster. We act across BC and in Calgary.
Can a Final Family Order obtained at Trial or Summary Trial be set aside? 604 602 9000
The short answer is YES! MacLean Law’s, Fraser MacLean and his Setting Aside Final Family Orders team was recently successful in setting aside a Final Order obtained at Summary Trial in a complex multimillion dollar family law matter.
In today’s blog, associate Fraser MacLean and paralegal Sherry Rashidi explain the test to set aside a default judgment made at a Family Summary Trial.
In the case of Kim v. Cho, 2023 BCSC 780, the Final Order was made in the absence of the Respondent(s). The Respondent, Mr. Kim, was residing in South Korea at the time the judgment was made. According to Section 200(2) of the Family Law Act, S.B.C. 2011, c.25 [FLA], if an order was made in the absence of a party, the court, in accordance with the Supreme Court Family Rules or the Provincial Court Family Rules, as applicable, may change, suspend or set aside the order. Our Setting Aside Final Family Orders jumped at the challenge to obtain a fair result for our client.
Vancouver Setting Aside Final Family Orders Lawyers 604 602 9000
What is the process of setting an undefended judgment aside? The following Supreme Court Family Rules can be relied on:
- Rule 14-7(77) of the Supreme Court Family Rules which states that: the court may set aside a verdict or judgment obtained if a party does not attend the trial; and
- Rule 21-6(3) of the Supreme Court Family Rules which states that: a party may apply to set aside a judgment obtained at trial in that party’s absence.
Section 81 of the Family Law Act states:
Equal entitlement and responsibility
81 Subject to an agreement or order that provides otherwise and except as set out in this Part and Part 6 [Pension Division]
- Spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and
- On separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debts.
Kelowna Setting Aside Family Summary Trial Lawyers 604 602 9000
The court was satisfied that both Respondents have two defenses worthy of investigation: resulting trust and unfair distribution. This win included satisfying the test in Miracle Feeds v. D. & H. Enterprises Ltd. (1979), 10 B.C.L.R. 58 (Co. Ct.) which under Rule 10-10 the requirements are that:
- The Respondent must establish that he or she did not willfully and deliberately fail to file a Response to the Notice of Family Claim. This inquiry is meant to focus on the personal and actual intent of the Respondent and not his or her counsel.
- The Respondent must establish that he or she applied to set aside the R. 10-10 final order as soon as reasonably possible after having had obtained knowledge of the R. 10-10 final order or, alternatively, must offer a reasonable explanation as to any delay in applying to set the order aside.
- The Respondent must establish that he or she has a meritorious defense at least a defense “worthy of investigation”.
Did the Respondents willfully and deliberately fail to respond to the application? 604 602 9000
The court was satisfied that:
[24] It is not in issue that Ms. Gea was served. I accept, however, that she did not understand what Ms. Cho meant about the Langley Property. I further accept that because of Ms. Gea’s lack of fluency in English, both oral and written, she did not understand what the document was and that she depended on Mr. Kim to explain them to her. Given these findings, I am satisfied that, Ms. Gea did not willfully and deliberately fail to respond.
Do the respondents have a meritorious defense or at least a defense worthy of investigation?
[28] As outlined above, both Ms. Gea and Mr. Kim’s defense, is that Mr. Kim holds his interest in trust for his parents. Accordingly, the Langley Property is not family property, and is therefore not subject to division. In support of this defense, in her affidavit, Ms. Gea details the sources of funds used to acquire the Langley Property. All of the funds came from Ms. Gea and Mr. Kim Sr.
[30] While Ms. Cho argues against this presumption by, for example, pointing to the fact that Mr. Kim claimed the Langley property on his tax return for a farming deduction, I am satisfied that it is a defense worth investigating.
[36] In conclusion, I am satisfied that the respondents have two defenses worthy of investigation: resulting trust and unfair distribution. Accordingly, I am satisfied, pursuant to the test in Miracle Feeds, that the Final Order should be set aside, and the parties be put back in the position they were prior to it being made.
Should the final order be set aside for lack of jurisdiction?
The Court sided with Fraser MacLean’s client on setting aside a judgement on a multimillion dollar home.
[40] At the time of the application, none of these preconditions had been met. Neither a response nor a counterclaim had been filed. In order to have a chambers matter remitted to the trial list, the court must conclude that there is a triable issue. Only after that is done does the court have jurisdiction to remit the matter to the trial list.
[41] That was not done in this case. As none of the preconditions were met, the court was without jurisdiction to make a final order.
See Batool v Siddiqui, 2022 BCSC 1220 [Batool] at para. 62, citing Nichol v Nichol, 2015 BCCA 278 [Nichol] at paras. 27-28.
[62] A court’s ability to set aside a final order that was obtained pursuant to Rule 10-10 in an undefended proceeding is based on s. 200(2) of the Family Law Act, which permits it to “change, suspend, or set aside” an order that was made in the absence of a party, and the Supreme Court’s inherent jurisdiction to prevent miscarriages of justice: Nichol v Nichol, 2015 BCCA 278 at paragraphs 27-28.
In the end result our client and his mother were successful in setting aside a judgment granted the wife 100% of a multimillion dollar home.
To speak with one of the top family lawyers at MacLean Law, please call our office at 604 602 9000
