Berthin v. Berthin

Berthin v. Berthin

The 2010 separation agreement is valid and enforceable. The claimant's counsel correspondence and requests for clarification did not amount to repudiation. The respondent's later unilateral misapprehension about the value of his business does not go to the root of the agreement and does not void it under common law or s.65 FRA. Therefore the agreement must be implemented and specific directions and deadlines are appropriate, and a divorce is granted.

Citation
2015 BCSC 78
Parties
Claimant: Helen Berthin; Respondent: Wayne Berthin
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
21 January 2015
Procedural Posture
Divorce and Family Property Enforcement / Trial Judgment
Outcome
Judgment enforcing the November 26, 2010 separation agreement with implementation directions; divorce granted effective 31 days after judgment; claimant awarded ordinary costs
Legal Topics
Separation Agreement Enforcement, Repudiation, Mistake (contract), Section 65 Family Relations Act Review, Business Valuation in Family Proceedings, Implementation of Settlement, Costs
Source Language
English
Family Law Contract Law Property Law Divorce Separation Agreement Enforcement Repudiation Mistake (contract) Section 65 Family Relations Act Review +3 more

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Parties

Helen Berthin

Claimant

Wayne Berthin

Respondent

Procedural Posture

Divorce and Family Property Enforcement / Trial Judgment

Legal Issues

  1. 1 Whether the claimant repudiated the November 26, 2010 separation agreement
  2. 2 Whether the 2010 separation agreement is void or unenforceable under s.65 of the Family Relations Act
  3. 3 Whether the 2010 separation agreement is void or unenforceable for common law reasons including mistake, duress or undue influence

Ratio Decidendi

The 2010 separation agreement is valid and enforceable. The claimant's counsel correspondence and requests for clarification did not amount to repudiation. The respondent's later unilateral misapprehension about the value of his business does not go to the root of the agreement and does not void it under common law or s.65 FRA. Therefore the agreement must be implemented and specific directions and deadlines are appropriate, and a divorce is granted.

Court Disposition

Judgment enforcing the November 26, 2010 separation agreement with implementation directions; divorce granted effective 31 days after judgment; claimant awarded ordinary costs

Orders

  • The respondent must close the purchase of a residence for the claimant on or before April 30, 2015 or seek further directions from the Court
  • Upon closing and full payment/removal from the Kiowa mortgage the claimant will relinquish all interest in the Kiowa Road property and be removed from title/mortgage as provided in the agreement