L.E.M. v. D.M.I.

L.E.M. v. D.M.I.

The court set aside the Second Separation Agreement as unconscionable both procedurally (claimant vulnerability, coercion to sign, inadequate meaningful disclosure and limited legal advice) and substantively (a 97%/3% split was grossly unfair); the respondent's entire investment portfolio was held to be family...

Source-derived case information.

Citation
2013 BCSC 450
Parties
Claimant: L.E.M.; Respondent: D.M.I.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
15 March 2013
Procedural Posture
Family Law — Property Division, Separation Agreement and Support / Trial Judgment
Outcome
Second Separation Agreement set aside as unconscionable; respondent's investment portfolio declared family assets; equal division applied by compensation order; child support and extraordinary expenses ordered; no periodic spousal support awarded though entitlement recognized.
Legal Topics
Separation Agreement Enforceability, Unconscionability, Family Relations Act S.65 Reapportionment, Determination of Family Assets, Child Support Imputation, Extraordinary Expenses S.7
Source Language
english
Family Law Contract Law Property Law Support Law Equitable Remedies Separation Agreement Enforceability Unconscionability Family Relations Act S.65 Reapportionment +3 more

Source-derived case record

Summary, issues, holding and outcome

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Parties

L.E.M.

Claimant

D.M.I.

Respondent

Procedural Posture

Family Law — Property Division, Separation Agreement and Support / Trial Judgment

Legal Issues

  1. 1 Whether the Second Separation Agreement is unenforceable for unconscionability
  2. 2 Whether the respondent's investment assets constitute family assets under the FRA
  3. 3 Whether equal division of family assets would be unfair under s.65

Ratio Decidendi

The court set aside the Second Separation Agreement as unconscionable both procedurally (claimant vulnerability, coercion to sign, inadequate meaningful disclosure and limited legal advice) and substantively (a 97%/3% split was grossly unfair); the respondent's entire investment portfolio was held to be family assets due to his intentions to use the portfolio for family support and the claimant's direct and indirect contributions over many years; equal division was not unfair and the respondent was ordered to compensate the claimant for half the family assets (with specific payments), child support was imputed at $50,000 income ($458/month) and extraordinary expenses ordered to be shared...

Court Disposition

Second Separation Agreement set aside as unconscionable; respondent's investment portfolio declared family assets; equal division applied by compensation order; child support and extraordinary expenses ordered; no periodic spousal support awarded though entitlement recognized.

Orders

  • Claimant to keep the $58,000 in assets in her name exclusively
  • Respondent to pay $125,000 held in his lawyer's trust account to the claimant forthwith