A.K.K. v. A.S.K.

A.K.K. v. A.S.K.

No s.93(3) circumstance was proven: both parties were sophisticated, had independent counsel, the respondent failed to establish vulnerability or incapacity, and disclosure shortcomings were not attributable to the claimant; further, on s.93(5) factors the Agreement was not significantly unfair given the parties'...

Source-derived case information.

Citation
2021 BCSC 1602
Parties
Claimant: A.K.K.; Respondent: A.S.K.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
16 August 2021
Procedural Posture
Family Law Application to Set Aside Separation Agreement Under Family Law Act S.93 / Application Heard on Summary Basis Under Rule 10 5; Decision on Application
Outcome
Application dismissed; separation agreement upheld
Legal Topics
Separation Agreement, Setting Aside Agreement, Family Law Act S.93, Disclosure Obligations, Unconscionability, Spousal Support, Child Support, Procedural Unfairness, Substantive Unfairness
Source Language
english
Family Law Contract Equity Tax Separation Agreement Setting Aside Agreement Family Law Act S.93 Disclosure Obligations +5 more

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Parties

A.K.K.

Claimant

A.S.K.

Respondent

Procedural Posture

Family Law Application to Set Aside Separation Agreement Under Family Law Act S.93 / Application Heard on Summary Basis Under Rule 10 5; Decision on Application

Legal Issues

  1. 1 Whether circumstances in s.93(3) existed when parties entered into the agreement (non-disclosure, taking advantage of vulnerability, incapacity or misunderstanding)
  2. 2 Whether the agreement is significantly unfair under s.93(5) and should be set aside or replaced
  3. 3 Whether post-agreement events warrant variation of education fund provisions

Ratio Decidendi

No s.93(3) circumstance was proven: both parties were sophisticated, had independent counsel, the respondent failed to establish vulnerability or incapacity, and disclosure shortcomings were not attributable to the claimant; further, on s.93(5) factors the Agreement was not significantly unfair given the parties' intention for certainty, steps taken to implement the Agreement and unreliable accounting evidence from the respondent; application to set aside was dismissed.

Court Disposition

Application dismissed; separation agreement upheld

Orders

  • Respondent's application to set aside the separation agreement dated June 29, 2016 is dismissed.
  • If parties wish to make submissions on costs they must contact Trial Scheduling within 30 days to schedule a costs hearing; if they do not, claimant awarded costs at Scale B.