06 March 2018


My friend and colleague Georgialee Lang, arbitrator, and lawyer extrordinaire, has given me permission to reproduce her article here, previously published for a presentation at PBLI.  The paper is eleven pages, so it is lengthy for a blog but an excellent resource for consideration of spousal support cases in an aging population and an era of ever increasing grey divorces. 

Karen F. Redmond, Family Law Lawyer




I naively thought that one day a discussion of spousal support would begin without the preliminary sentiment that spousal support is one of the most difficult areas of family law in Canada. That’s what I wrote in 1990 in my Canadian Bar Review article entitled “Pelech: Variations on a Theme”; in 1995 in “Spousal Support After Moge” published by the Continuing Legal Education Society; and in 2011 in The Huffington Post: “Family Law’s Crapshoot: Will Canada Reform Spousal Support Laws?”

And here I go again… the promised consistency and certainty that would allegedly flow from the Spousal Support Advisory Guidelines (“SSAG”) has proven illusory. The stark reality is pre-SSAG one could at least rely on precedent, similar cases with similar facts, but today, not so much, and don’t get me going on the discrepancy in the use and abuse of the SSAG across Canada.

Sadly, similarly situated spouses across Canada face support awards and principles that bear little resemblance to spousal support orders made in British Columbia, the jurisdiction that has most avidly welcomed, even embraced the SSAG. B.C. judges and SSAG go together like “Love and Marriage” with all due respect to the great Frank Sinatra and the fine judges of our Court of Appeal.
The lack of predictability in spousal support awards, including variation and termination of support orders, has increasing importance as Canada faces a “greying” population and long term marriages are crumbling at startling rates, owing in part to the “boomers” refusal to imitate the more languid lifestyles of previous generations. It is universally recognized that many Canadians are healthier, and with advances in medicine, life now has more “cherries in the bowl”. Statistics Canada reports that by 2036 there will be only 2.5 workers in Canada for every retired senior. That’s a lot of old people!

Spousal support for spouses 50 or older introduces considerations and consequences that require a nuanced approach to the determination of quantum and duration, reviews, variation, and termination.  In this paper I will review the most recent spousal support cases from the British Columbia Court of Appeal to provide a glimpse of current trends and issues.

I believe this review will illustrate the impact of grey divorce on Canada’s divorce industry and the future prospects for family law lawyers.

1.    JENDRUCK   v.  JENDRUCK 2014 BCCA 320

The Jendrucks were married for 34 years, were in their late 50’s, and had two independent children. Mrs. Jendruck was not employed at the time of trial but had previously worked at a bank for 20 years and operated a daycare from her home. Mr. Jendruck’s income was $80,000 per annum.

Mr. Jendruck argued his wife had made no effort to become economically independent and that income should be imputed to her. The trial judge found that Mrs. Jendruck’s lack of self- sufficiency was Mr. Jendruck’s fault as he had maligned his wife’s daycare operation, leading to her emotional issues.  The trial judge expressly noted that Mrs. Jendruck could not be expected to work for minimum wage at a job that would provide no satisfaction to her.

Support was ordered at the highest range of the SSAG, an amount of $3,849.00 per month, to be reviewed in 2020 when the husband would attain 65 years of age.

The husband appealed citing the trial judge’s error in attributing his wife’s inability to continue with her daycare operations and emotional upset to him. He also argued that the notion that his wife was exempt from seeking outside employment, albeit at minimum wage, was wrong in law.

Madam Justice Saunders agreed that the trial judge had erred on the basis of the following factors:
  1. Neither the pleadings nor the trial evidence supported the trial judge’s theory that the wife was unable to restart her daycare;
  2. There was no evidence, other than the wife’s; that her emotional state would prevent her from the childcare work she aspired to.
  3. Mr. Jendruck’s “unenthusiastic” comments about his wife’s daycare operation did not “bear upon her ambition once he left the family home”.
  4. Mrs. Jendruck had argued she needed to retain the family home in order to operate her day care, a position the trial judge acceded to.
  5. The court cited Van Gool v. Van Gool (1998) 44 RFL 4th 314, for the proposition that “this Court has never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because they could not obtain interesting or highly-paid work”, declaring it to be applicable to a spouse’s obligation to contribute to her own support insofar as is practicable, pursuant to the Divorce Act.
The Appeal Court imputed income of $1,000 a month to Mrs. Jendruck; found that the review provision upon Mr. Jendruck’s 65th birthday was not unreasonable and left it in place; but also ordered an earlier review to take into account the uncertainty of Mrs. Jendruck’s earned income. This review was to take place in six months and focus on Mr. Jendruck’s income, Mrs. Jendruck’s income, and her efforts to enhance her income.


a) The wife’s pleadings did not include the assertion she was incapable of restarting a day care in her home. With the new “check-box” pleadings it is easy to skip over important facts that are central to a party’s case. Counsel often forgets it is the pleadings that govern the issues and argument in a case.

 b) The Court found that the wife’s evidence of emotional upset and an inability to work was insufficient to make a finding of fact in that regard. When physical or emotional incapacity is relied on to support an award of spousal support, there must be independent third-party evidence such as medical records or a medical report.

c) Despite a 34-year marriage, and a 58-year old dependent spouse, with no more than a grade twelve education, but previous work experience, counsel can no longer suggest that it is inappropriate or degrading for their older female clients to work at a menial job for minimum wage.
2. LEE v. LEE 2014 BCCA 383

The Lee’s were married for 20 years with no children and were ages 56 and 49 at the time of the appeal. Mr. Lee spent ten-years as a “car man” with Canadian National Railways and part-time as a doorman at a bar. Mrs. Lee spent these years earning a bachelor and master’s degree at her own expense and eventually became a high school principal earning $120,000 per annum. Mr. Lee’s CNR income topped out at $48,000, but came to an end as a result of a car accident that “made it impossible for him to wear a hard hat”. He then began to work part-time as a personal trainer earning $10,000 per year. However, he never filed tax returns, citing his nominal income as the reason.

Mr. Lee received an ICBC settlement of $320,000 that he said was used for family expenses, including a payment of  $240,000 against the mortgage on their first family home. The evidence showed that the parties lived well beyond their means and repeatedly remortgaged their home to pay down credit card debt and overdraft lines of credit.

Mr. Lee suddenly told his wife that the marriage was finished and moved in with a policewoman who earned a base salary of between $75,000 and $90,000, before overtime. While his new partner’s income records were subpoenaed she did not produce them.

Mr. Lee claimed spousal support pointing to the significant disparity in income between he and his wife. He agreed to an imputation of income in the amount of $40,000 per annum and sought monthly support of  $2,100.00 for seven and one-half years when he would receive a CNR pension of $1,490.00 per month.

Mr. Lee received a modest reapportionment of the net family assets of  $186,485.00 and a Part 6 division of their respective pensions. The Court discounted his argument that his contribution to the pay down of the mortgage supported a larger reapportionment. The judge did not accept that his contribution was greater than his wife’s, given her high income, and noted that much of his settlement was used to purchase a Subaru vehicle, a Corvette including $20,000 in modifications, another Subaru, and a Harley-Davidson motorcycle, all for himself.

The trial judge held that Mr. Lee was not entitled to spousal support in addition to 54% of the net family assets, finding there was no basis for compensatory or needs-based support. Mr. Lee had received about $19,000 in voluntary interim support that he was ordered to repay to his wife.

The husband’s spousal support appeal was essentially about his entitlement to the standard of living that Mrs. Lee would continue to enjoy post-divorce.

Madam Justice Newbury remarked that Mr. Lee had not forgone any educational or career opportunities or made any other “sacrifice”. He also did not make a substantially greater contribution to the family than did Mrs. Lee.

She identified the “question of principle” raised by Mr. Lee’s appeal succinctly:

“Whether it can be said that by virtue only of the disparity between his and Mrs. Lee’s income going forward, he can be said either to have suffered a disadvantage by reason of breakdown of the marriage, or to have a claim to spousal support on the basis of need.”

Madam Justice Newbury acknowledged the generalized comments of Madam Justice L’Heureux-Dube in Moge v. Moge that suggested the question before her could be answered in the affirmative, however, she also averted to the oft-cited proposition that “marriage per se does not automatically entitle a spouse to support.”

The Court cited extensive portions of Professor Carol Rogerson’s article from 2001 titled “Spousal Support Post-Bracklow” 19 CFLQ 185, including where Ms. Rogerson referred to a quote from the Ontario Supreme Court in Keller v. Black (2000) 182 DLR 4th 690:

“It seems that Bracklow has taken us to the point where any significant reduction in the standard of living of a spouse, resulting from marriage breakdown will warrant a support order—with the quantum and/or duration of the support being used to tweak the order so as to achieve justice in each case.”

Madam Justice Newbury agreed that the Court’s comments in Keller v. Black aptly described the approach adopted in British Columbia as well, however, she found there was no precedent for an award of spousal support based “solely on the disparity of incomes, or even solely on the basis of the non-compensatory model” referring to several cases including Chutter v. Chutter 2008 BCCA 507; Hodgkinson v. Hodgkinson 2006 BCCA 158; and Fisher v. Fisher 2008 ONCA 11.

She also noted that in Farrar v. Farrar 2003 63 OR 3d 141 the trial judge ordered Mrs. Farrar to pay her spouse the sum of $12,000.00 solely on the basis he was in need and she had the ability to pay, an order overturned by the Ontario Court of Appeal stating that “the differential in income alone did not provide a basis for awarding spousal support.”

Equalization of income was also considered in Griffiths v. Griffiths 2011 ABCA 359 where the appeal court said:

"Equalization of incomes, or even of lifestyles, is not a basis alone for non-compensatory spousal support. Still less is equalization of incomes each year. Loss of access to the fruits of the respondent’s future labour is not a recognized underpinning to entitlement to spousal support, absent other considerations.”

Most notably, the Court found that if Mr. Lee had not formed a new relationship the current case law in British Columbia would have permitted an award of spousal support, given 20 years of marriage, but:

“whether it would have been a material error in law or a wrong exercise of discretion to refuse support in such circumstances is another matter…To rule as a matter of law that Mr. Lee should be compensated indefinitely for the “loss” of the ability to share in Mrs. Lee’s income and lifestyle would, taken to its logical conclusion, mean that support must be ordered on one model or the other in virtually every case that comes before the court.”

The majority held that the only appropriate change to the trial judgment should be the elimination of Mr. Lee’s obligation to repay his wife for the interim support. Dissenting on this point alone, Madam Justice Bennett held that the repayment order was sound in law based on the economic effect of Mr. Lee’s new relationship with a partner who owned her own home and earned a substantial income.

Mrs. Lee was awarded 90% of her costs.


  1. After reading Lee v. Lee I got the sense that the trial judge did not like or respect Mr. Lee. The trial judge referred to Mr. Lee’s admission that he had been selling steroids and growth hormones illegally; earning $200.00 a month, a modest sum that was contradicted by third party evidence. The Court also acknowledged that money Mr. Lee had borrowed or assets acquired remained undocumented or incompletely explained. The Court also found that the standard of living enjoyed by the Lees was illusory as it was accommodated with borrowed money.
  2. The trial judge expressed skepticism that Mr. Lee’s employment choices were limited to part-time personal training, referring to a video recording taken surreptitiously by a private investigator that filmed Mr. Lee at his gym lifting heavy weights with considerable agility. There was also expert evidence that a full-time trainer with only a high school education could earn up to $60,000 a year.
  3. Mr. Lee’s assertion that his financial contribution to the marriage exceeded his wife’s received short shrift with the Court of Appeal emphasizing that it was neither desirable or necessary to carry out an accounting of “who paid what” during the marriage.
  4. Undoubtedly gender played a role in the court’s ultimate conclusion. Madam Justice Newbury referred to “transitional support” allowing that: 
“Such awards have regularly been made in favour of women, but rarely in favour of men, perhaps reflecting that, as Rogerson suggests, “Non-compensatory support is significantly structured by social norms of what is fair and just. The economic dependency of husbands on wives is not reinforced and naturalized by strong cultural norms, as is the dependency of wives on husbands…”


 In my view the heaviest litigation traffic amongst aging boomers will be in reviews, variations, and applications to terminate spousal support, based on section 17 of the Divorce Act. The Hepburn case is illustrative of this prediction.

Dr. Hepburn, age 55, was a family physician that had a modest sideline writing a syndicated medical column for local newspapers from which he earned about $30,000.00 per annum. After 26 years of marriage the Hepburn’s separated in 2006. Mrs. Hepburn, age 65, had raised their four children and occasionally performed bookkeeping and administrative duties for her husband’s medical practice.

The parties negotiated a settlement, agreeing that Dr. Hepburn’s income for the purpose of a SSAG calculation was $220,000 while his wife’s was nil. He agreed to pay his wife $8,000.00 a month indefinitely with no review.

In 2008 Dr. Hepburn decided to amp up his media career and spend less time seeing patients and more time developing a media platform. Eventually he signed a contract with the Oprah Winfrey Network to produce a television show called Wisequacks. He would be paid a modest $1,250.00 per episode. As a minority owner of a group of medical clinics, in 2009 he was asked to transfer his practice to another clinic location, and he agreed.

His pursuit of a media career was not lucrative and entailed many hours of networking and creating opportunities for potential success. In 2011 he advised his ex-wife that because of a downturn in his income he would reduce her monthly support from $8,000.00 a month to $5,000.00 a month.

At a variation hearing in 2012 he deposed his annual income was only $145,000, while his former wife’s income had grown from nil to $12,000.00 a year, on account of rental income and Canada Pension Plan benefits. Dr. Hepburn argued that his change of workplace resulted in fewer patients and less income. He also suggested that the media industry was changing rapidly and that other media forms had displaced a weekly newspaper column. He also contended that income should be imputed to his ex-wife because she had not taken reasonable steps to become self-sufficient.

The chambers judge dismissed his variation application opining he had not met the onus of proving a material change in circumstances. The judge found that the change in the location of his workplace was not mandatory; the fact Dr. Hepburn now spent almost fifty per cent of his time on media activities, with no commensurate financial benefit, was also a personal choice that should not give rise to a change in his spousal support obligations.

On appeal Madam Justice Neilson agreed with the chambers judge that Dr. Hepburn’s relocation in his workplace was voluntary and that he ought reasonably to have known that the change would translate to a lower income. She also found that Dr. Hepburn had failed to show that his media activities had a reasonable prospect of financial success, a factor that could have justified the hours he devoted to it.

However, the appeal court allowed the appeal recognizing that the decrease in his media income and the increase in Mrs. Hepburn’s income post-separation, albeit moderate, were nevertheless material. Dr. Hepburn’s income was found to be $200,000.00, a reduction of $20,000.000 per annum and Mrs. Hepburn’s $12,000.00 per annum, an increase from nil income.

Dr. Hepburn was ordered to pay $6,850.00 in spousal support.


  1. Although far from startling, the fact remains there is a very heavy onus on a variation applicant to prove a material change in circumstance that is not characterized as voluntary or self-serving.  Any change in a payor’s income that comes as a matter of choice is fatal to a successful variation application.
  2. Where an applicant has a high-paying, long-term professional position, his or her desire to “stop and smell the roses” is permitted, but not at the expense of a reduction in a dependent spouse’s spousal support.
  3. There is no doubt that Mrs. Hepburn’s age was an important factor although it was not specifically mentioned by either court. Dr. Hepburn’s suggestion that his former wife had not taken serious steps to become self-sufficient garnered little comment from the courts.


This couple was married for 31 years, separating in 2006. They negotiated a settlement of all matrimonial issues that saw each of them retain 50% of the family assets and Dr. Zacharias agreed to pay indefinite spousal support to his former wife of $6,000.00 per month.

Mrs. Zacharias married her husband at the age of 17 and was 58 at the time of the appeal. Dr. Zacharias remarried after his divorce from Mrs. Zacharias, but was again divorced. He was 63 years old at the time of the appeal.

In 2012 Mrs. Zacharias remarried a man who earned $175,000 per annum. The chambers judge found that her remarriage constituted a material change in circumstances that was unforeseen at the time of the original support order.

At the time of the variation hearing Dr. Zacharias’ income was $300,000 per year, while his former wife’s was $45,000, not including her spousal support.

The chambers judge found that Mrs. Zacharias wholly supported the family while her ex-husband studied to become a medical doctor. He also found that she assumed most of the childcare and household management for her husband and their two children.

Mrs. Zacharias worked full time before the birth of her second child and then sporadically during the marriage in a part-time position at Dr. Zacharias’ office. After the date of separation she continued working in a doctor’s office. After the divorce she trained as a hairdresser and later upgraded her skills to become a bookkeeper.

The chambers judge determined that Mrs. Zacharias had moved to accommodate her husband’s career but the relocations had not disadvantaged her. He gave little weight to her contribution in the early years of the marriage while her husband was qualifying as a physician and concluded that she no longer had entitlement to non-compensatory support as her net worth now exceeded her husband’s and she was able to contribute $2,000.00 every month to an RRSP.

The chambers judge considered that the original spousal support award had two components: half of the award was needs-based and half was compensatory. He reduced spousal support by $3,000.00 representing the non-compensatory portion of the $6,000.00 consent order.

On appeal Dr. Zacharias sought a termination of spousal support.  Mr. Justice Groberman reviewed the lower court’ s findings and held that the variation order was essentially “premised on the length of the marriage alone and the unexplained view that one-half of the original spousal support award was compensatory.”

He found the judgment was “not well-founded in law” although he agreed with the chambers judge’s conclusion that entitlement to compensatory support still existed and the sum of $3,000.00 was appropriate. The appeal was dismissed.

The appeal court noted that both appeal counsel referred to Morigeau v. Moorey 2015 BCCA 160 which on its face seemed contradictory to the court’s conclusion in Zacharias.

The facts in Morigeau included an older couple in a long marriage where the former husband sought a variation in spousal support because his ex-wife had re-partnered with a man who earned $ 155, 000.00 per year. At the time of the original support order, Mrs. Morigeau was in an exclusive relationship with her boyfriend and the two spent considerable time together, although each maintained separate accommodation.

Madam Justice Kirkpatrick agreed with the trial judge’s finding that Ms. Morigeau’s cohabitation was reasonably foreseeable and correct on the facts and law. She stated that the circumstances were factually indistinguishable from the Supreme Court of Canada’s decision in G. (L.) v. B. (G). 

Mr. Justice Groberman in Zacharias said:

“I acknowledge that some of the obiter comments in Morigeau might, if extended too far, be seen as inconsistent with the analysis I have presented. Some caution should, in my view, be exercised in applying those obiter comments. While they may be applicable in some cases, individual circumstances will have to be carefully considered. In particular, I would suggest that characterizing a re-partnering situation as a potential “windfall” for either the payor or payee spouse will rarely be helpful.”


  1. The substantial salary of Dr. Zacharias played a significant role in the court’s refusal to terminate spousal support. In Morigeau, the support order was  $1,800.00 per month based on the husband’s salary of $119,000.00 and the wife’s of $47,850. At the date of the variation hearing the former spouses earned $118,000.00 and $52, 524.00 respectively. Mrs. Morigeau’s new partner had income of $155,000.00.
  2. When settling spousal support cases it may be helpful to set out the basis upon which the order is made in contemplation of the inevitable variation application.
  3. While hyperbole and descriptive language may be influential in the lower courts, it is usually frowned upon in appellate courts, thus the appeal judge’s condemnation of the description of “re-partnering” as a “windfall.”


Grey divorce is a relatively new phenomenon and research is limited, particularly in Canada where Statistics Canada stopped collecting marriage and divorce data in 2008. Nonetheless, we know that the only age group where there is a rise in divorce is in the over 50 population. A poll of 1,600 American divorce lawyers revealed that 61% acknowledged an increase in divorce in their over 50 clients, with 25% of those divorces being initiated by women, as opposed to 14% by men.

The same survey of members of the American Academy of Matrimonial Lawyers indicated the most contentious issue in grey divorce is spousal support or alimony.

Why the explosion in divorce among baby boomers? Several reasons emerge including empty-nest syndrome, greater financial independence with boomer women, healthier and longer lifespans, and the prospects of new relationships.

There can be no doubt that family law lawyers will benefit from divorcing boomers, as will financial planners, mediators, divorce coaches and other professionals in the divorce industry.

Georgialee Lang BA JD FCIArb
















24 January 2018

Unequal Division of Family Property - what exactly is "Significant Unfairness" anyway?

Karen F. Redmond

Family Law Lawyer and Mediator

In the recent case of  Polard v. Polard, 2017 BCSC 1963, Justice MacKenzie granted the wife's request for unequal division of family property (70/30 in her favour) based largely on the fact that the husband had significant claims to excluded property. What is interesting to me about this case is that the excluded property consisted entirely of a Family Trust which the husband would be entitled to receive on the death of both his parents who were alive and well at the time of the trial. 

The case provides an excellent overview of the provisions of the Family Law Act required for consideration in claims involving "significant unfairness", including the definition of family property and excluded property; the presumption of equal division under section 81  and the considerations under section 95(1) if a party seeks to divide family property unequally on the basis of significant unfairness.   

Under the section 95 analysis, subjection (2) sets out the considerations for the court including the duration of the relationship between the spouses, a spouse's contribution to the career or career potential of the other spouse, and any other factor other than those listed in section 95(3) which states

"The Supreme Court may consider also the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the spouses if, on making a determination respecting spousal support, the objectives of spousal support under section 162 (objectives of spousal support) have not been met."

Although significant unfairness is not defined in the Family Law Act, in L.G. v. R.G. , 2013 BCSC 983 at paragraph 71 the court cautioned against "a departure from the default of equal division in an attempt to achieve a "perfect fairness."  And only when an equal division would be "unjust or unreasonable" should the court depart from an equal division.  The BC Court of Appeal further clarified the meaning in Jaszczewska v. Kostanski, 2016 BCCA 286  saying at paragraph 42 that significant unfairness must be something objectively unjust, unreasonable or unfair in some important or substantial sense. 

The first step of the analysis in determining whether equal division would be significantly unfair is determination of family property (and debt) pursuant to sections 84, 85 and 86 of the Family Law Act, and once an equal division has been calculated, the court then determines whether or not equal division would be significantly unfair having regard to the provisions of section 95 (see Remmen v. Remmen, 2014 BCSC 1552 and Blair v. Johnson, 2015 BCSC 761.

In the Polard case what struck me was that the excluded property consisted of benefits which might at some point be conferred on the husband from the Family Trust controlled by his father.  The matter was somewhat complicated by the fact that distributions might in future be made to him from rebates which may or may not be forthcoming from CRA.  The husband argued that he never actually received any money from the tax maneuvers utilized by his father and the accountants which were done in order to reduce the tax bill from the sale of his father's business and not to benefit him or his siblings.  Despite the evidence of Mr. Polard Sr. that Mr. Polard Jr. would not actually receive any financial benefit until the death of both parents, the Court reapportioned family property 70/30 in favour of the wife. 

An interesting case to read.  As always, speak to a family law lawyer to discuss the specifics of your case. 

08 January 2018

Is a verbal agreement made between lawyers binding on their clients?

As counsel we have a tremendous responsibility to act not only in the best interests of our clients, but on their instructions.  When lawyers are retained, we are engaged by our clients to do certain things and act for them in a way that accords with the terms of our retainer agreement.  One of the things we are often tasked with is conducting negotiations.  It is crucial for our clients to know that we are negotiating on their behalf, but the decisions, particularly decisions to reach a settlement, that are made must be theirs. 

As counsel, it is as critical to ensure clear communication with our clients to make sure they are properly informed about any proposals and that they provide us clear instructions for responding and settling a case.  In this day and age of high speed internet, deals are often negotiated by email, by phone or on the Courthouse steps, as was the case in Sekhon v. Khangura, 2009 BCSC 670 (CanLII) where two lawyers negotiated and confirmed a settlement on behalf of their clients in person at the Courthouse.  The defendants in the Sekhon later claimed that a deal had not been reached so the matter was set for trial, with both former lawyers as witnesses.  

The Sekhon case provides an interesting overview of the issues that the Court considers when deciding if an agreement has been reached between lawyers, on behalf of their clients.  Were the lawyers properly retained?  Were the clients informed of the proposal and did they authorize their lawyer to accept the proposal on their behalf?  How was the information conveyed to the lawyer and how was it conveyed by the lawyer to the opposing party?  Did the proposal and the agreement need to be in writing? 
One of the defendants, Mrs. Khangura, claimed that a deal had not been reached because she had not instructed the lawyer to accept the proposal on her behalf.  In the alternative, she said at trial, that she told the lawyer she would consider the proposal if it was sent to her in writing, thereby alleging that the acceptance was conditional upon it being reduced to writing and signed.  Mrs. Khangura’s former lawyer testified that he was at all times acting on the basis of instructions from his client to settle the matter has she had been anxious to settle. 

The Court found that the defendants had properly instructed their lawyer to settle the case, and that the terms of settlement had been properly communicated verbally between the lawyers at the courthouse.  The following propositions were clarified at paragraph 110:

  1. A solicitor acting for a party in settlement negotiations is acting as the agent of the client;
  2. The solicitor is presumed to have the authority to bind the client to the terms of settlement;
  3. There is no obligation on other parties to make enquiries regarding a solicitor’s authority to settle a matter on a client’s behalf;
  4. It is in the best interests of the administration of justice that solicitors be free to contemplate settlements with solicitors without having to enquire about or be concerned with the actual authority of the solicitor;

Scherer v. Patella, [1966] O.J. No. 1017 (C.A.)
Harvey v. British Columbia Corps of Commissionaires, 2002 BCPC 69

  1. And from paragraph 117:  “A settlement made between counsel for the parties with their client’s knowledge and consent is enforceable as a binding contract.  The court will give effect to a binding contract, unless there are grounds for setting aside the contract under ordinary principles of contract law, such as fraud, duress, lack of capacity or mutual mistake.”  Robertson v. Walwyn Stodgell Cochrane Murray Ltd.[1988] B.C.J. No. 485 (C.A.).)
  2. An agreement does not need to be reduced to writing in order for it to be enforceable. 

“To my mind the form of the settlement is immaterial. The actual settlement was agreed to between solicitors. There was a settlement from the moment the solicitors reached an accord. The solicitors could have finalized the settlement by an exchange of correspondence or in any other manner they chose. However, the decision of Mr. Ouellette was to have his clients sign the offer to settle and have it accepted. That goes to form only.”   Rottacker Farms Ltd. v. C & M Farms Ltd.1976 ALTASCAD 158 (CanLII)[1976] A.J. No. 453 (S.C. (A.D.)) at ¶25:
And finally, “A complaint about a lawyer’s conduct in circumstances like this, however, is not relevant to the determination of whether there was a binding settlement agreement entered into between the two lawyers on September 22, 2006.  If a lawyer has exceeded his authority, that is matter between the lawyer and his clients: Adamoski at ¶4; Rottacker at ¶28; Baldissera v Baldassi2000 BCSC 1788 (CanLII) at ¶39.” 

So, the answer to the question posed: "Is a verbal agreement made between lawyers binding on their clients?" is yes, if the circumstances of the case are as those in the Sekhon case. 

As always speak to a lawyer if you have questions about your case. 

07 November 2017

Blameworthy Conduct in the Extreme – When retroactive child support can be ordered for more than three years

by Karen Redmond

A.J.D. v. C.D. 2017 BCSC 1559

In this decision of the BCSC released September 1, 2017 the wife applied for retroactive child support for 12 years, dating back to the signing of the separation agreement in 2003.  The separation agreement did not provide for annual exchange of financial information or annual updates of child support.  Both children had lived with their mother and the father had stated his income as $90,000 and provided misleading information about his income at the time of signing of the agreement.  He continued to pay child support based on the income information in the separation agreement.  The mother was not aware that the child support could be reviewed annually and took no steps to apply for disclosure of income information from the husband until he unilaterally reduced his child support in 2015 when the oldest child turned 19.  His income had increased significantly between 2003 and 2015 ranging from $105,551 to $772,127. 

The court found the husband’s conduct blameworthy in the extreme, citing the leading case D.B.S. v. S.R.G., 2006 SCC 37 [D.B.S.] and the exceptions to the principles outlined in D.B.S.  Although the Court in D.B.S. said that it would usually be inappropriate to delve too far into the past, to award child support retroactively for more than three years, the court said there are circumstances where the payor’s conduct does warrant such awards.  In the A.J.D. case Madam Justice Young ordered retroactive child support for 12 years for a total payment owing by the husband of $522,408 taking into account the circumstances of the children, their financial need and the present financial situation of the husband and the wife. 

23 October 2017


BY Georgialee Lang




Practicing family law is difficult enough without having to be wary of opposing counsel’s wily tactics. One of the cardinal rules of litigation is to provide notice to opposing counsel (or to an unrepresented litigant) of any steps you intend to take in court to pursue your client’s claims. To proceed without notice, also called “ex parte”, ought to be a rarity, particularly in the emotionally charged dynamics of a family law proceeding.

Toronto lawyer and former 2010 mayoralty candidate, Rocco Achampong, was handling a high-conflict custody matter that resulted in a judge ordering him to pay costs of $1,200.00 to his client’s husband for “sharp practice”. Such an order is extremely rare and only made when a lawyer’s conduct has been egregious.

The case started with Mr. Achampong’s client, who was living in the family home, obtaining an ex parte order for custody of her two-year-old daughter from the Ontario Court of Justice. That action resulted in her husband bringing a cross-motion for the same order, however, the parties talked through matters and decided to reconcile. All court action was terminated and the temporary custody order in favour of the mother was vacated.

Their reconciliation, however, was brief and ended after police were called to the home for an alleged incident of domestic violence. Promptly thereafter, the father brought another application to court seeking custody of his child and alleged that he and his wife had previously agreed they would share custody, but she had reneged on their oral agreement. After filing the application but before he obtained a fresh court order, he went to the child’s daycare and brought the child to his home.

This triggered a landslide of emails, letters and telephone correspondence between the parent’s respective lawyers, all of which adopted a conciliatory tone as the lawyers made efforts to resolve their clients’ problems without further court action. Different resolution options were canvassed including a 4-way meeting with clients and counsel, a mediation session, or an expedited return to court to have a judge assist.

However, while father and his counsel, Mr. Schuman believed their negotiations were bearing fruit, Mr. Achampong was hurriedly preparing court documents, while lulling opposing counsel into believing that the only issue between them was the selection of a mediator. 

In the meantime, father’s counsel had obtained an expedited hearing date as well, as a back up, and delivered his application documents to Mr. Achampong.

Despite this, Mr. Achampong obtained a custody order from the Ontario Superior Court of Justice, a higher court in Ontario with the same jurisdiction as the Ontario Court of Justice to make child custody orders. 

He did all of this without notice to opposing counsel, and without advising the judge that a new hearing date had already been secured in the lower court. Neither did he tell the Court that as recently as that morning, he had been involved in ongoing settlement discussions with father’s counsel.

Mr. Schuman was furious with the betrayal and reported Mr. Achampong to the Law Society. His client then brought an application for costs against Mr. Achampong personally. The Court made the following observations:

“Mr. Achampong never advised Mr. Schuman that he was wasting his time in the Ontario Court of Justice since his intention was to have the case heard instead in the Superior Court of Justice. He had an obligation to do so. Even if his client instructed him to proceed in the Superior Court of Justice (likely the case) and not to immediately advise Mr. Schuman (this is unknown), he cannot hide behind the excuse of client instructions. It was his obligation to let Mr. Schuman know that he would be proceeding in a different court, so that Mr. Schuman did not prepare needlessly for a case that would be stayed.

Mr. Achampong demonstrated poor judgment in exercising his professional obligations to Mr. Schuman on October 12, 2012. It is apparent from a review of the correspondence of counsel on that day that they were discussing urgent mediation to try and resolve the temporary issues. Mr. Schuman was taking steps to expedite this process. While Mr. Achampong asked for his client to be able to speak and see the child, there was no indication that he would be immediately going to court to obtain relief. It was certainly reasonable for Mr. Schuman to believe from the correspondence that the process would be mediation first, and if the case was not adjourned, that the temporary motions about parenting arrangements would be argued on Tuesday, October 16, 2012, in the Ontario Court of Justice.”

Mr. Achampong compounded his ethical breach by arguing before the Court that he had done nothing wrong. Another lesson learned. Best to fall on one’s sword than to justify improper behavior. The costs order is miniscule compared to the embarrassment of the national publication of his breach of professional ethics.

My guess is that in his zeal to have his client’s child returned, he forgot about his professional obligations as an officer of the court. In my view, no client’s case is worth a breach of ethical standards.


04 October 2017

Do You Need to Prove 'Ouster' in Order to Make a Claim for Occupational Rent in BC?

Karen Redmond
The Oxford Dictionary defines ouster as:   ejection from a property, especially wrongful ejection.  In the context of family law, it means that one person has been tossed out of the family home forcing them to live elsewhere.  In these situations, the person having been tossed, often wants to collect money from the ‘tosser’, and this is called occupational rent.  The case law has been relatively consistent about what is required in order to make a claim for occupational rent, and we would typically tell our clients that they had to prove they had been ‘forcibly ejected’ in order to support a claim for occupational rent.   
In McFarlen v. McFarlen, 2017 BCSC 1737,  a recent decision of Mr. Justice Jenkins released September 28, 2017 the finding of the court was that it was not necessary to prove that a party had been ousted in order to succeed with a claim for occupational rent.  The McFarlen’s were married for only two years but had lived together for 15 years prior to their apparently ill-fated nuptials.  They were both 53 at separation and did not have children together.  The central issue in the case was the claim by Mrs. McFarlen that her husband should pay occupational rent, because he had lived in the former family home since the date of separation, up to and including the eventual sale.  The issue was, had she been outsted, and more particularly, if she had , did she have to prove it in order to make her claim? 
Mr. Justice Jenkins reviewed the oft cited case of Ross v. Ross, 2013 BCSC 1716 which clearly lays out the principles applied in cases where claims for occupational rent were made.  At paragraph 47 of Ross:
From the jurisprudence the following principles may be drawn regarding the awarding of occupational rent on a matrimonial home:
1.     Occupational rent is a remedy which may be utilized to obtain justice and equity in appropriate circumstances.
2.     The remedy is exceptional and should be used cautiously.
3.     The following factors, where relevant, are appropriately considered:
·        The conduct of both spouses, including failure to pay support, the circumstances under which the non-occupying spouse left the home, and if and when the non-occupying spouse moved for a sale of the home (Peltier at paras. 16-17; Wilgosh at paras. 99 and 109; Good, at para.90)
·        Where the children are residing and who is supporting them (Good at para. 90; Peltier at paras. 16--17; Wilgosh at para.108).
·        If and when a demand for occupational rent was made (Wilgosh at paras. 100 and 106; Good at para.90, and Peltier at para.16)
·        Financial difficulty experienced by the non-occupying spouse caused by being deprived of the equity in the home (Peltier, at paras. 16-17; Wilgosh at para. 106)
·        Who is paying for the expenses associated with the home. This includes who is paying the mortgage and other upkeep expenses (maintenance, insurance, taxes, etc.). ….
·        Whether the occupying spouse has increased or decreased the selling value of the property (Peltier at paras. 16-17)
·        Any other competing claims in the litigation that may offset an award of occupational rent (Wilgosh at para. 108; Good at para. 92).
4.     The remedy is a discretionary one requiring the balancing of the relevant factors to determine whether occupational rent is reasonable in the totality of the circumstances of the case.
And continuing at paragraphs 48 through 50, Justice Verhoeven wrote:
“[48]      A similar list of considerations is set out in Higgins v. Higgins (2001), 19 R.F.L. (5th) 300, at para. 53 (S.C.J.), and is regularly applied in Ontario. Higgins expressly states that ouster is not required. Similar approaches are applied in Alberta, Manitoba, Nova Scotia and New Brunswick: Braglin v. Braglin, 2002 ABQB 816, at para. 3; England v. Nguyen, 2013 MBQB 196, at paras. 74-77; Carmichael v. Carmichael, 2005 NSSC 318, at paras. 49-64; Cripps v. Cripps, 2007 NBQB 2, at paras. 52-57.
[49]      Concepts of occupational rent derived from general property law may be inconsistent with modern family law. In England at para. 74, Johnston J. observed:
To focus on a consideration of "ouster" is to set the development of family law back to the "bad old days" when issues of conduct may have been relevant considerations to our courts. How a person came to be in possession of a jointly owned asset should be a lesser concern to the court. The effect of the period of occupancy should be the focus of the court's consideration in exercising its discretion in attempting to value a fair result.
[50]      On the approach used by the other jurisdictions, as I interpret it, the overriding question is whether occupational rent, as a discretionary remedy to be used cautiously, should be utilized in order to achieve justice and equity in all of the circumstances of the case. This approach appropriately places little if any emphasis on the question of fault or blame for the decision of one spouse or the other to leave the matrimonial residence.

In support of the proposition that ouster is not required in order to prove a claim for occupation rent, Mr. Justice Jenkins cited a line of cases including Shen v. Tong, 2013 BCCA 519; Piderman v. Piderman, 2015 BCSC 475; Hodel v. Adams, 2016 BCAC 910.  The Honourable Judge also reviewed a line of cases where the BC Supreme Court had recently found that ouster was in fact a condition precedent to a claim for occupational rent.  At paragraph 20 he concludes that a party is no longer required to prove ouster in order to support a claim for occupational rent:    

"[20] So, is “ouster” a condition precedent to a claim for occupational rent? The authorities suggest that this remains an open question. Based on my interpretation of the law in this province,         I accept that “ouster” is no longer a pre-condition to a claim for occupational rent measured by the cost of alternative accommodation. The statements by Verhoeven J. which have been adopted by McEwan J. in Piderman as well as the statement by Willcock J. in L.M.R v. J.F.R., 187 A.C.W.S. (3d) 775, support this interpretation. My reasoning is reflective of the opinions expressed by Verhoeven J. and McEwan J. in Ross, Piderman and C.M.L.S.- that the proper way to approach a claim for occupational rent is as a discretionary tool to achieve fairness. Such a conclusion is consistent with family law legislation including the Divorce Act, (R.S.C., 1985, c. 3 (2nd Supp.)) and the FLA which are not premised upon “fault based” principles. If I have correctly interpreted the law in British Columbia, then a review of the claim can proceed on the basis of equity. If “ouster” is required, this issue would have to proceed to trial to determine whether or not there has been an ouster."

In this writer’s opinion, the courts will still look at ouster in examining the fairness and equity principles, but it is no longer a condition precedent to these types of applications.

11 August 2017

Is child support payable for a child over the age of majority who is attending college or university?

As we approach September, the question is arising more and more frequently in my practice about when a child is still considered to be a dependent ‘child’ and in need of financial support if they are attending college or university and not living  at home. As a mother of three ‘children’, ages 19, 22 and 24, all of whom are pursuing post-secondary studies, I can tell you first hand that there is no clear point at which children are no longer in need of financial aid from their parents.  The case of Kiristmanson v. Kristmanson 2012 BSC 1750 is helpful in this regard. 

From the Court’s perspective, payment of child support for a child over the age of majority depends on the facts of each particular case. 

In six Canadian provinces, the age of majority is 18: Alberta, Manitoba, Ontario, Prince Edward Island, Quebec, and Saskatchewan.  And, the age of majority is 19 in the four remaining provinces and the three territories: British Columbia, New Brunswick, Newfoundland, Northwest Territories, Nova Scotia, Nunavut, and Yukon.

The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides the following definition for the term "child of the marriage" where a person is over the age of majority:

“child of the marriage” means a child of two spouses or former spouses who, at the material time,

 . . . is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

Case law has interpreted "other cause" to include an adult child in attendance at post-secondary schooling.

The seminal case of Farden v. Farden (1993), 2570 BCSC tells us that the onus rests upon the applicant to establish that the person for whom a support order is sought is still a child within the meaning of the Act Master Joyce, as he then was, provided the following helpful analysis for determining the status of an adult child:

Whether or not attendance in a post-secondary institution will be sufficient cause for a finding that the child is still a "child of the marriage" requires examination of all of the circumstances.  It is not a conclusion which follows automatically from proof of attendance at the institution . . . In my view the relevant circumstances include:

(1)  whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;

(2)  whether or not the child has applied for or is eligible        for student loans or other financial assistance;

(3)  the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;

(4)  the ability of the child to contribute to his own support through part-time employment;

(5)  the age of the child;

(6)  the child's past academic performance, whether the child is demonstrating success in the chosen course of studies;

(7)  what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;

(8)  at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

In Neufeld v. Neufeld, 2005 BCCA 7 (CanLII), the Court of Appeal expressly adopted the above passage from Farden as being a non-exhaustive list of considerations which apply in cases where the Court is being asked whether support is payable for an adult child.  In Neufeld, the issue was whether support was payable for an adult child pursuing a medical degree.  One of the important factors considered by the trial judge was that the decision to pursue this level of education was in keeping with the family’s pre-separation plans for their daughter. 

The cases tell us that there is no arbitrary cut-off point for child support for adult children, based either on age or level of education.  We know that there is no statutory prohibition against support for an adult child seeking a second degree; determination depends on the facts of each specific case, and Neufeld reminds us there is not a specific or primary piece of the Farden inquiry which will determine the result in any given case. 
So, the answer to the question, "Is child support payable for a child over the age of majority who is attending college or university?", is, as with most family law matters, it depends on the facts of your case.