Miller v. El-Hafi, 2024 BCSC 269

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Miller v. El-Hafi, 2024 BCSC 269 Date: 20240216 Docket: E201031 Registry: Victoria Between: Shelley Louise Miller Claimant And Mustapha Khaled El-Hafi Respondent Before: The Honourable Justice Chan Reasons for Judgment Counsel for the Claimant: J.D. Nelson Counsel for the Respondent: J.R. Gordon Place and Date of Hearing: Victoria, B.C. January 31, and February 8, 2024 Place and Date of Judgment: Victoria, B.C. February 16, 2024 Table of Contents INTRODUCTION .. 3 FACTUAL BACKGROUND .. 3 FURTHER AMENDMENT OF THE NOTICE OF FAMILY CLAIM .. 4 Position of the Parties . 4 LEGAL FRAMEWORK .. 5 ANALYSIS .. 6 Amendments Relating to Child Support –

Schedule 2 . 6 Amendments Relating to Spousal Support –

Schedule 3 . 7 Amendments Relating to Property –

Schedule 4 . 7 Amendments Relating to Other Orders –

Schedule 5 . 8 SETTING OF TRIAL DATES ON THE THRESHOLD ISSUE .. 9 CONCLUSION .. 10 INTRODUCTION [ 1 ] This is a family law matter where the parties have been married twice and divorced twice, to each other. Before the most recent divorce, the parties signed a separation agreement in 2017 (“Separation Agreement”). Shelley Louise Miller brings an application to

further amend her notice of family claim and to set down for hearing the issues of the parties’ Separation Agreement and beneficial ownership of a property in Kelowna (“Kelowna Property”). Ms. Miller claims the Separation Agreement ought to be set aside as she had no knowledge of the existence of the Kelowna Property at the time she signed it, and she argues the evidence will show Mustapha Khaled El-Hafi is the beneficial owner. FACTUAL BACKGROUND [ 2 ] The parties were married on May 2, 1989 and divorced on March 6, 1997. They remarried on February 14, 1999 and divorced on May 14, 2018.

There are two children of the marriage, born in 2000 and 2002. [ 3 ] Mr. El-Hafi purchased the Kelowna Property on December 1, 2011, in joint tenancy with Patricia Ireland. Ms. Miller did not know about this purchase. The Kelowna Property was purchased from Monique Rebecca Marie Habib and David Joseph Habib. It was in foreclosure proceedings at the time. [ 4 ] On September 9, 2013, Ms. Ireland’s half interest in the Kelowna Property was transferred to Mr. El-Hafi. [ 5 ] From 2012 to 2017, the parties lived in different cities.

The children attended private school in Victoria. [ 6 ] In the summer of 2017, the parties separated. Ms. Miller claims she had no knowledge of the Kelowna Property when she signed the Separation Agreement on August 17, 2017. Ms. Miller claims she did not read the Separation Agreement in detail and did not receive any legal advice prior to signing it. [ 7 ] After separation, Ms. Miller hired a private investigator. She learned from an interim report of the private investigator on December 12, 2020 that Mr. El-Hafi owned the Kelowna Property. The final report was released on February 7, 2020. [ 8 ] Ms.

Miller filed a notice of family claim on March 5, 2020. It was amended on October 16, 2020. Ms. Miller applies now to further amend it. [ 9 ] As I understand the pleadings, Mr. El-Hafi claims the Kelowna Property is beneficially owned by David Habib. The parties are currently entangled in document disclosure and discoveries, with the ownership of the Kelowna Property being one of the major areas of contention. [ 10 ] The parties have also disagreed on the venue for the trial of this matter.

Both counsel appeared to agree that it would be helpful if the threshold issue of the ownership of the Kelowna Property was decided first, with Ms. Miller arguing the Separation Agreement ought to be set aside due to non-disclosure of this asset. Mr. El-Hafi applied to change the venue to Kelowna for the determination of that threshold issue. [ 11 ] On September 7, 2023, Justice Saunders ordered that trial for the threshold issue of the beneficial ownership of the Kelowna Property and whether the Separation Agreement should be set aside, should take place in Kelowna.

The remaining issues for trial are to remain in Victoria. [ 12 ] The parties require a court order to put this threshold issue on the trial list. FURTHER AMENDMENT OF THE NOTICE OF FAMILY CLAIM Position of the Parties [ 13 ] Ms. Miller’s position is the proposed amendments are properly characterized as further particularizations of her claim and the proposed amendments are not new claims.

In the alternative, she argues if the proposed amendments are found to be new claims, they are sufficiently connected to her original claim that they should be allowed and that any applicable limitation periods have been suspended due to non-disclosure, such that these claims are not barred. LEGAL FRAMEWORK [ 14 ] Pursuant to R. 8-1 of the Supreme Court Family Rules , a party requires leave of the court to amend a notice of family claim for a second time after a notice of trial has been taken out and there is no consent.

This is such a situation. [ 15 ] The factors to be considered in an application to amend pleadings are set out in Halan-Harris v. Blain , 2023 BCSC 2128 : [70] The general principles in considering whether proposed amendments should be granted are set out in Chouinard v. O’Connor , 2011 BCSC 902 , aff’d 2011 BCCA 161 : [11] The factors to be considered in all amendment applications are applicable in this case as well.

General principles are these: 1. amendments should be permitted as necessary to determine the real question and issues between the parties; 2. the party is not required to [adduce] evidence in support of a pleading before trial;

3. on an application to amend, the facts alleged are taken as established; and 4. the discretion is to be exercised judicially in accordance with the evidence adduced and the guidelines of the authorities. [ 16 ] A spouse may apply to set aside a separation agreement no later than two years after the spouse first discovered or reasonably ought to have discovered the grounds for making such an application: Family Law Act , S.B.C. 2011, c. 25 [ FLA ], s. 198(3) . [ 17 ] Limitation periods do not bar claims that are not fundamentally different from that previously pleaded.

Justice Crerar explained this in British Columbia Securities Commission v. Pasquill , 2023 BCSC 2150 : [89] First, where the proposed amendments flow from facts previously pleaded, even if in support of a new or alternative claim or remedy, there will be no issue as to the potential expiry of a limitation period: Taylor v. Blenz The Canadian Coffee Company Ltd ., 2019 BCSC 906 at paras 35 and 44 , citing Swiss Reinsurance Company v. Camarin Limited , 2018 BCCA 122 at para 21 .

A proposed amendment will only be refused after the expiry of a limitation period where it seeks to advance a fundamentally different claim: 1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848 at para 22 [ North Elgin ]. ANALYSIS [ 18 ] Some of the proposed amendments are clearly non-contentious, such as correcting the spellings of the children’s last names, and I will not discuss them further. Those proposed amendments are allowed. Amendments Relating to Child Support –

Schedule 2 [ 19 ] Ms. Miller proposes to amend the claim for child support by seeking both prospective and retroactive support from August 17, 2017 onwards, and an order for child support under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .) [ DA ], in addition to the FLA . Mr. El- Hafi opposes these amendments.

He argues this is not a “divorce proceeding” pursuant to s. 2.1 of the DA , and this Court has no jurisdiction to make a child support order pursuant to the DA as there is no divorce being sought. [ 20 ] Sections 15.1 – 15.2 of the DA allows for applications for corollary relief, such as child and spousal support. For the purpose of ss. 15.1 – 15.2, a spouse is defined to include a former spouse: DA , s. 2 . This Court has the jurisdiction to order child support under the DA in these circumstances where there has been a divorce. [ 21 ] Mr.

El-Hafi further argues the older child is no longer a child of the marriage, while the younger child may no longer be a child of the marriage. In my view, these are issues for trial, and do not have any relevance to whether the proposed amendments ought to be allowed. [ 22 ] In my view, these proposed amendments are further particularizations of the claim for child support. Child support has always been claimed, and Ms. Miller is simply setting out more details on that claim. Adding that she is also seeking child support under the DA does not change the fundamental nature of the claim.

These proposed amendments are allowed as they refine the issues between the parties. Amendments Relating to Spousal Support –

Schedule 3 [ 23 ] Ms.

Miller seeks to (1) add that the current spousal support amounts are “..without regard to the SSAG”; (2) add an order for spousal support under the DA , in addition to the FLA ; (3) update her gross annual income to approximately $25,870 a year; and (4) add that “whether the Separation Agreement of August 17, 2017 is set aside and spousal support is calculated afresh pursuant to the Divorce Act from the date that the separation agreement was entered into OR if spousal support is varied both prospectively and retroactively from August 17, 2017 onwards, that spousal support should be ordered indefinitely and on a compensatory and needs basis and that the Claimant should not be required to pay taxes retroactively on support where payments were made against her credit card in lieu of spousal support or where spousal support was not distinguished from child support”. [ 24 ] Mr.

El-Hafi argues no application for spousal support can be made two years after a divorce has been granted: FLA , s. 198(2) (a) (i). He argues as spousal support was not included in the original notice of family claim but only after it was first amended in October 2020, this was two years past the date of the divorce in May 2018. [ 25 ] This is false, as there was a claim for spousal support made in the original notice of family claim, filed in March 2020. [ 26 ] In my view, these proposed amendments are further particularizations of Ms. Miller’s claim for spousal support.

There is nothing in the proposed amendments that can be characterized as a fresh claim. Ms. Miller is providing further details of her claim for spousal support, which was in the original pleadings. These proposed amendments are allowed. Amendments Relating to Property –

Schedule 4 [ 27 ] Ms. Miller seeks to add a paragraph to this portion of the claim, setting out further details on the basis for which she is seeking unequal division of family property and family debt. She refers to her claim of excluded property, a claim for occupational rent from the respondent residing at the family residence before the sale, the respondent using property post-separation to raise funds for his business, the respondent receiving rental income from the family residence, and the need of the claimant for spousal support. Under the heading of “B.

Other property claims”, she proposes to add the phrase “and other family property as identified through disclosure or discovery”. Under the heading of “2. Certificate of Pending Litigation”, she proposes to add back the address of 1949 Bayview Court, Kelowna, as real property on which she is applying for a certificate of pending litigation to be registered against title.

[ 28 ] In my view, these proposed amendments are further particularizations of Ms. Miller’s claim for family property and family debt and are not new claims. Unequal division of family property and family debt has always been claimed. The Bayview Court address is not new as it was listed in the original claim. These proposed amendments are intended to assist the parties and the Court to focus on the real issues between the parties. These proposed amendments are allowed. Amendments Relating to Other Orders –

Schedule 5 [ 29 ] To her claim to set aside the August 17, 2017 Separation Agreement under s. 93(3) of the FLA , Ms. Miller seeks to add the phrase: “the Respondent failed to disclose significant property or other information relevant to the negotiation of the agreement including the value of family property held by the respondent”.

Regarding the Separation Agreement, she also proposes to add “Pursuant to section 164(3) of the Family Law Act , an order to set aside the Separation Agreement dated 17 August 2017, as to spousal support on the grounds that the Respondent failed to disclose his income from all sources”. Lastly, she seeks to add details of the accounting she is seeking, being “both generally and also an accounting of revenue earned from the rental of the family residence after separation”. [ 30 ] In my view, these proposed amendments are further particularizations of her original claim.

She has always claimed that the Separation Agreement ought to be set aside. She is adding details on the basis for which she makes this claim. She is adding details on the financial information she is seeking to have an accounting. These proposed amendments are allowed. SETTING OF TRIAL DATES ON THE THRESHOLD ISSUE [ 31 ] There appears to be significant conflict between counsel on setting the threshold issue for trial.

I will say no more about the reasons both counsel have advanced as to why this is so, as the reasons are not relevant and will not assist the conduct of the litigation. [ 32 ] Justice Saunders ordered that the trial of the threshold issue of the beneficial ownership of the Kelowna Property and whether the Separation Agreement should be set aside, to take place in Kelowna. The parties appear to disagree if this is properly characterized as one threshold issue or two threshold issues.

In any event, it is clear that Saunders J. ordered both of these matters – the issue of the beneficial ownership of the Kelowna Property and the issue of whether the Separation Agreement ought to be set aside – to be determined first, by a trial in Kelowna. For clarity, I will refer to these issues as the Two Threshold Issues. I agree these Two Threshold Issues are related and ought to be determined together. If a further court order is required to set for trial these Two Threshold Issues, apart from the remaining issues in this matter, I am making such an order. [ 33 ] Counsel for Mr.

El-Hafi argues there are procedural irregularities in how Ms. Miller is applying to set aside the Separation Agreement. He argues Ms. Miller needs to make an application to set aside the Separation Agreement, which he argues has not been done. In any event, he argues even if the Court was to view this current application as the application to set aside the Separation Agreement, it is brought out of time, as it is not within two years of the discovery of alleged grounds to set aside the Separation Agreement. In my view, Ms. Miller started this family action when she filed her notice of family claim in March 2020.

She sought to set aside the Separation Agreement as part of her family action. This application is to set down for trial the Two Threshold Issues, which includes the setting aside of the Separation Agreement. I see no procedural irregularities. [ 34 ] As to the dates for hearing of these Two Threshold Issues, the parties agreed that they are both available for ten days starting January 13, 2025 in Kelowna. At the hearing on January 31, 2024, I directed those dates be reserved. While there are earlier court dates available in October 2024 in Kelowna, counsel for Mr. El-Hafi was not.

I am not ordering that these dates be peremptory on Mr. El-Hafi. CONCLUSION [ 35 ] The Court makes the following orders:

a) The proposed amendments to the notice of family claim are allowed;

b) The Two Threshold Issues of the beneficial ownership of the Kelowna Property and whether the Separation Agreement should be set aside are set to be heard in a trial in Kelowna for ten days starting January 13, 2025; and

c) As Ms. Miller has been successful in these applications, she will have her costs at scale B in the cause. “Chan J.”