R.L.S. v. D.C.M.

R.L.S. v. D.C.M.

A consent order incorporating a separation agreement cannot be set aside by the court on the basis of general unfairness under s.65/s.68; only ordinary contractual defences may invalidate consent. The wife failed to prove inequality, lack of independent advice, duress, undue influence or unconscionability; therefore the consent order and separation agreement stand and the wife's claims are dismissed.

Citation
2002 BCSC 1794
Parties
Plaintiff (f992514); Defendant (e010367): R.L.S.; Defendant (f992514); Plaintiff (e010367): D.C.M.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
23 December 2002
Procedural Posture
Family Law Variation/set Aside of Separation Agreement and Consent Order Under Family Relations Act / Trial Reasons for Judgment (decision)
Outcome
Plaintiff's claims in Action E010367 dismissed; consent order and separation agreement not set aside or varied
Legal Topics
Separation Agreement, Consent Order, Variation Under Family Relations Act S.65 and S.68, Unconscionability, Undue Influence, Duress, Independent Legal Advice, Full Financial Disclosure, Res Judicata
Source Language
English
Family Law Contract Law Civil Procedure Equity Separation Agreement Consent Order Variation Under Family Relations Act S.65 and S.68 Unconscionability +5 more

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Parties

R.L.S.

Plaintiff (f992514); Defendant (e010367)

D.C.M.

Defendant (f992514); Plaintiff (e010367)

Procedural Posture

Family Law Variation/set Aside of Separation Agreement and Consent Order Under Family Relations Act / Trial Reasons for Judgment (decision)

Legal Issues

  1. 1 Whether a consent order incorporating a separation agreement can be varied by the court on general fairness grounds under s.65 or s.68 of the Family Relations Act
  2. 2 Whether the applicant (wife) proved contractual defences (unconscionability, undue influence, duress, lack of independent legal advice, failure of disclosure) to set aside the separation agreement/consent order

Ratio Decidendi

A consent order incorporating a separation agreement cannot be set aside by the court on the basis of general unfairness under s.65/s.68; only ordinary contractual defences may invalidate consent. The wife failed to prove inequality, lack of independent advice, duress, undue influence or unconscionability; therefore the consent order and separation agreement stand and the wife's claims are dismissed.

Court Disposition

Plaintiff's claims in Action E010367 dismissed; consent order and separation agreement not set aside or varied

Orders

  • Dismissal of the plaintiff's claims in Action E010367 (as pleaded)
  • No variation or setting aside of the consent order on general fairness grounds under s.65/s.68 of the Family Relations Act