May 4, 2015

AREAS OF LAW: Family law; Procedure; Time-barred application; Family Law Act

Halliday v. Halliday, 2015 BCCA 82 (CanLII)

Under the Family Rules, the filing of a requisition to which a written copy of a separation agreement is attached commences a family law case and it is not correct to subsequently issue a Notice of Family Claim.~


BACKGROUND:             The parties entered a separation agreement on July 23, 2009. They had been married in 1984 and separated November 1, 2008. Under the terms of the agreement the Appellant, David Halliday, was to pay the Respondent, Annette Halliday, spousal support in the amount of $500 per month for 12 months beginning in June 2009. Divorce proceedings began the following month. In June 2010 the Appellant was laid off from his job. He did not find work again until October 2011. The final order for divorce was made on March 7, 2011. No claims were made in the divorce proceedings concerning property division or spousal support. The Appellant had made eight of the 12 spousal support payments, and during his period of unemployment the Respondent wrote to him in an email that “we will just forget [the remaining payments] and call it even…” On January 6, 2014, the Respondent commenced these proceedings by filing by way of requisition in the Victoria Registry a copy of the separation agreement. The requisition erroneously stated that there were no court proceedings involving the parties to the separation agreement in which orders had been made or sought under the Divorce Act. The Respondent sought an order for monthly spousal support in the middle of the Spousal Support Advisory Guideline range and an order for the division of certain assets. She stated in the application that she had not made a claim earlier because the Appellant was unemployed and because at the time of the separation agreement she was under a great deal of stress and felt depressed. The Respondent took the position that the application was brought out of time, pursuant to s. 198 of the Family Law Act (FLA). He filed a notice of application to dismiss the Respondent’s application as having been brought out of time. The applications came before Dorgan J., who observed that the proceedings were irregular and could not be commenced by way of notice of application. She told the Respondent that if she wanted to challenge the terms of the separation agreement she would have to commence an action. On May 8, 2014, the Respondent filed a Notice of Family Claim seeking spousal support and an equal division of family property and debt. She indicated that she was relying on the FLA. The Appellant contested that the Respondent had a right to seek spousal support or a division of property. He filed a notice of application to strike the Notice of Family Claim on the basis that it disclosed no reasonable claim and that it was barred by statutory limitation. The Respondent stated that she only became aware of or discovered the grounds for making her application, being gross unfairness and/or an unconscionable agreement, in late 2012. Based on this representation, the application judge found that the action was not statute-barred, and dismissed the Appellant’s application.


APPELLATE DECISION:            The appeal was allowed. The Appellant submitted that all the facts necessary to support the Respondent’s claim were known to her by October 2011 at the latest. He argued that she had an obligation to seek professional advice based on the known material facts, where a reasonable person would do so. In the Appellant’s submission, the principles of discoverability require a party with knowledge of the material facts forming the basis of a claim to exercise reasonable diligence, including seeking legal advice where appropriate. The Respondent did not make submissions in her factum regarding discoverability, but rather relied on authorities which have held that it was not necessary for the Respondent to present affidavit evidence in the context of a motion to strike pleadings. The Court noted that neither the Respondent’s initial application nor her Notice of Family Claim indicated that she was seeking spousal support under the Divorce Act, and the Court remarked that this was probably because as a self-represented litigant she was unaware that she could bring such a claim and that it would not be time-barred. A judicial case conference should have taken place prior to the hearing before the application judge. Madam Justice Dorgan also erred when she advised the Respondent that she could not obtain the relief she sought unless she issued a Notice of Family Claim. As the litigation had already been commenced by the filing of the separation agreement, there was no authority in the Family Rules for issuing a Notice of Family Claim, thus initiating a parallel action concerning the same subject matter. The matter should not have been heard before the application judge, and his order had to be set aside. Having set the order aside, the Court of Appeal held that the Respondent could bring an application to set aside the separation agreement, and that she would be well advised to include a claim for spousal support under the Divorce Act. The Court directed that before any further hearing was held, the parties attend a judicial case conference.