The road to bringing a court application in a family law case is usually fairly long and arduous. Typically, an action is started by filing a document called a Notice of Family Claim (“NOFC”). Once this is done, the NOFC must be served on the opposite party, who then has 30 days to respond. In addition, the parties must attend a Judicial Case Conference, a preliminary meeting between the parties and a judge, which usually takes months to book. It is only after the parties have completed the JCC requirement that one or both of them may bring an application.
Although the conventional route set out above is appropriate for most family matters, there may be cases where such an elaborate process may not be necessary or beneficial. For example, if you have a separation agreement with your spouse or former spouse, and wish to vary or set it aside in whole or in part, you may be able to start an action in Supreme Court simply by filing the agreement using a requisition in form F17.1. Any and all Supreme Court Family Forms you may ever need can be found here.
The relevant rule is Rule 2-1(1) of the Supreme Court Family Rules (“SCFR”). It sets out the types of written agreements that may be filed, namely agreements that are referred to in section 15, 44(3), 58(3), 148(2) or 163(3) of the Family Law Act. For clarity, these sections pertain to: parenting coordinators, parenting arrangements, contact with children for parents, child support, and spousal support. Although there is some debate about this in the case law, you may not wish to use this option if the part of the agreement you wish to vary or set aside deals with property division, given that this topic is not one of the listed categories under Rule 2-1(1).
Under Rule 3-1(4.1) of the SCFR, if a person files an agreement that refers to at least one of the categories enumerated in the paragraph above, and there is no existing family law case within which it is appropriate to file the requisition, the filing of the agreement starts a fresh family law case. You may then bring an application to vary or set aside the agreement, and must use the application procedure set out under Rule 10-6 of the SCFR. There is no wait time, nor a requirement to attend a Judicial Case Conference prior to bringing an application in this case.
The most commonly cited case on this issue in British Columbia is Halliday v. Halliday, 2015 BCCA 82. Here, a married couple separated in 2008, and entered into a separation agreement in 2009, to settle all issues between them, including property division, pension division and spousal support. In August 2009, the parties commenced divorce proceedings and in March 2011, a final order for divorce was issued.
In 2014, the wife commenced brand new court proceedings by filing the parties’ separation agreement. At the same time, she filed a notice of application, seeking an order to replace parts of the separation agreement. The judge who heard the application deemed that the proceedings were irregular and could not be commenced by way of a notice of application, and advised the wife that she must file a NOFC, if she wanted to challenge or set aside the terms of the separation agreement.
However, the Court of Appeal held differently. In its decision delivered on February 24, 2015, the Court of Appeal found that the proceeding was effectively commenced when the wife filed the parties’ separation agreement by requisition. Therefore, she was correct to bring an application to set aside the whole or part of the separation agreement, and need not have filed a NOFC. That she did so, on the instruction of the judge who heard her application, constituted a lack of compliance with the SCFR, as the litigation had already been commenced by the filing of the separation agreement, and this meant that there was no authority in the Family Rules for issuing the NOFC, a parallel action concerning the same subject matter. As a result, all subsequent proceedings were ordered to be set aside.
Halliday has been affirmed in a number of recent decisions, such as Lu v Yao, 2020 BCSC 24, Li v Zhu, 2018 BCSC 2182, and Kler v. Kang 2018 BCSC 1136.
In summary, if you have a written separation agreement which you wish to have enforced, varied, or set aside in whole or in part, and there is no existing action in your family matter, you may be able to start an action simply by filing a copy of the agreement with a requisition in form F17.1 Once your agreement is filed, refer to Rule 10-6 of the SCFR for the usual application procedure. This is, on the whole, a significantly quicker and cheaper alternative to commencing an action in the usual course by way of a Notice of Family Claim. Bear in mind that, if there is already an action in your family matter, or if the orders you seek involve complex property division disputes, this may not be the appropriate route for you, and a NOFC may be the preferred choice.
If you are in the process of separating, this is yet another great reason to have a separation agreement drafted. Should disputes arise down the road, and you run out of alternative resolution options, filing your agreement in court may save you significant time, money, and hassle.
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