Leonte v. Leonte, 2015 BCSC 1079

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Leonte v. Leonte, 2015 BCSC 1079 Date: 20150624 Docket: E101683 Registry: Vancouver Between: Laura Leonte Claimant And Liviu Leonte Respondent Before: The Honourable Mr. Justice McEwan R U L I N G In Chambers Claimant, appearing on own behalf: Laura Leonte Counsel for the Respondent: No appearance Place and Date of Trial/Hearing: Vancouver, B.C. May 29, 2015 Place and Date of Judgment: Vancouver, B.C.

June 24, 2015 [ 1 ] The claimant has come before the court in chambers, applying by way of a notice of application to “cancel [her] separation agreement filed in Supreme Court.” [ 2 ] She has produced a requisition establishing that a separation agreement made between the parties on September 13, 2010 was filed in court under the Family Law Act , S.B.C. 2011, c. 25. She alleges that the respondent is approximately $25,000 in arrears of his child support obligations. She says he has taken no interest in this application although he is aware of it.

There is no proof of service in the materials before the court. [ 3 ] The claimant says that her pension is worth more than the respondent’s and that she wants the agreement “cancelled” to the effect that she retains her pension free and clear of any claim by the respondent and he retains his pension free and clear of any claims from her. [ 4 ] This is at odds with the terms of the separation agreement which appears to have been fully considered by each party with the benefit of legal advice. The pension clauses read as follows: 9.

(1) The benefits accrued to the Husband (the “Pension”) under the pension available to him as part of his employment with the District of Vancouver (the “Plan”) are a family asset.

(2) The Wife is entitled to a share of the Pension determined and divided in accordance with

Part 6 of the Family Relations Act and this Agreement.

(3) For the purpose of determining the Wife’s share of the Pension (the Wife’s “Proportionate Share”), the Husband and the Wife confirm that they were married on January 15, 2000 and that the Wife’s entitlement date is January 15, 2000 (the “Entitlement Date”). (4) the Husband is a trustee of the Wife’s interest in the Pension and owes the Wife all the duties of a trustee to a trust beneficiary in respect of that interest.

(5) To the extent that the Husband’s estate or any person deriving entitlement through the Husband, receives any portion of the Pension representing the Wife’s Proportionate Share of the Pension, or of any benefits under the Plan including preretirement or postretirement survivor benefits belonging to the Wife, the person receiving the benefits, upon receiving actual or constructive notice of the Wife’s interest in those benefits, will hold those benefits in trust for the Wife and immediately pay them to the Wife.

(6) The Wife or the Husband may apply to a court of competent jurisdiction for such directions and further orders as may be necessary to facilitate and enforce the division of the Pension, including the posting of security to secure the Wife’s Proportionate Share

of the Pension. 9.

(1) The benefits accrued to the Wife (the “Pension”) under the plan she is eligible as part of her employment with the Vancouver Community College (the “Plan”) are a family asset.

(2) The Husband is entitled to a share of the Pension determined and divided in accordance with

Part 6 of the Family Relations Act and this Agreement.

(3) For the purpose of determining the Husband’s share of the Pension (the Husband’s “Proportionate Share”), the Wife and the Husband confirm that they were married on January 15, 2000 and that Husband’s entitlement date is January 15, 2000 (the “Entitlement Date”).

(4) The Wife is a trustee of the Husband’s interest in the Pension and owes the Husband all the duties of a trustee to a trust beneficiary in respect of that interest.

(5) To the extent that the Wife’s estate or any person deriving entitlement through the Wife, receives any portion of the Pension representing the Husband’s Proportionate Share of the Pension, or of any benefits under the Plan including preretirement or postretirement survivor benefits belonging to the Husband, the person receiving the benefits, upon receiving actual or constructive notice of the Husband’s interest in those benefits, will hold those benefits in trust for the Husband and immediately pay them to the Husband.

(6) The Husband or the Wife may apply to a court of competent jurisdiction for such directions and further orders as may be necessary to facilitate and enforce the division of the Pension, including the posting of security to secure the Husband’s Proportionate Share of the Pension. 10. The Husband and the Wife will share equally all costs associated with the above described division of their respective pensions. [ 5 ] The circumstances in which a court may set aside separation agreements are set out in s. 93(1) of the Family Law Act , as follows: 93.

(1) This

section applies if spouses have a written agreement respecting division of property and debt, with the signature of each spouse witnessed by at least one other person.

(2) For the purposes of subsection (1), the same person may witness each signature.

(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement: (

a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement; (

b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress; (

c) a spouse did not understand the nature or consequences of the agreement; (

d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.

(4) The Supreme Court may decline to act under subsection (3) if, on consideration of all of the evidence, the Supreme Court would not replace the agreement with an order that is substantially different from the terms set out in the agreement.

(5) Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following: (

a) the length of time that has passed since the agreement was made; (

b) the intention of the spouses, in making the agreement, to achieve certainty; (

c) the degree to which the spouses relied on the terms of the agreement. [ 6 ] The only grounds upon which the present application is advanced are set out very briefly in the affidavit supporting the motion, as follows. 1. The parties signed a separation agreement on November 29th, 2010 before the divorce was complete. In the agreement the parties agreed to participate in each other pensions. As today February 20th the respondent owes over $25,000 in child support. I would like to withdraw from my interest in his pension and I would like to withdraw from mine.

The Municipal Pension plan needs an order from a judge to cancel the separation agreement. [ 7 ] The authority is said to be the “B.C. Supreme Court Family Rules”. These read as follows: RULE 2-1 – AGREEMENTS Written agreements

(1) A copy of a written agreement referred to in

section 15 , 44(3) , 58(3) , 148(2) , or 163(3) of the Family Law Act may be filed. [B.C.

Reg. 133/2012, Sch., s. 2; B.C. Reg. 67/2013, Sch., s.1(a)] Filing agreements under the Family Law Act

(2) To file an agreement under subrule (1), a copy of the agreement must be attached to a requisition in Form 17.1 and the requisition must be filed. [B.C. Reg. 133/2012. Sch., s. 2] Enforcing agreements

(3) Without limiting any other power the court may have to enforce an agreement filed under this rule, the court may make an order for that purpose on an application and, for that purpose,

Part 10 of these Supreme Court Family Rules applies. [B.C. Reg. 133/2012, Sch., s. 2] [ 8 ] It is impossible to address the application in the terms presented. The grounds appear to be that because the respondent is in arrears of child support, the distribution of the parties’ pensions ought to be adjusted. The application does not address the conditions set out in s. 93(1) , which essentially limit the courts’ discretion to circumstances vitiating the agreement at the time it was executed.

There are no grounds asserted to suggest that agreement is “significantly unfair” in light of the criteria set out in s. 93(5). [ 9 ] Adjusting the pension division may be an attractive proposition to the claimant, but it is difficult to see how it could be considered an appropriate way to address the problem of child support arrears. That problem should properly be dealt with by enforcement proceedings compelling the respondent to attend court to explain himself. [ 10 ] If the claimant has a better case to make for setting aside the separation agreement under s. 93, she is at liberty to make it.

On the grounds advanced, the present application must, however, fail and I dismiss it. [ 11 ] I add, as a caution, that any further proceedings in this matter ought to be brought on proper proof of service on the respondent. Although I have addressed the merits in an attempt to be helpful, I would not have been satisfied that an order ought to have been made, in any event, without better proof. “McEwan J.” _______________________________ The Honourable Mr. Justice McEwan