Frazer v. van Rootselaar, (2006) 225 B.C.A.C. 56 (CA)

• Judge: Ryan, Huddart and Saunders, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 04, 2005
• Jurisdiction: British Columbia
• Citations: (2006), 225 B.C.A.C. 56 (CA);2006 BCCA 198

Frazer v. van Rootselaar (2006), 225 B.C.A.C. 56 (CA);

    371 W.A.C. 56

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. MY.008

Lyon Patricia Lynn Frazer (appellant/plaintiff) v. Robert Herman van Rootselaar (respondent/defendant)

(CA031997; 2006 BCCA 198)

Indexed As: Frazer v. van Rootselaar

British Columbia Court of Appeal

Ryan, Huddart and Saunders, JJ.A.

April 26, 2006.

Summary:

Spouses separated. They had executed a marriage contract in 1994 in which they agreed, inter alia, that any property owned jointly by the parties would be separated equally in the event of separation and in which the wife waived any right to spousal support. The wife sued the husband, seeking repayment of a sum she advanced for the purchase of the parties' matrimonial home and spousal support.

The British Columbia Supreme Court, in a decision reported at [2004] B.C.T.C. Uned. 333, dismissed the wife's action. The wife appealed.

The British Columbia Court of Appeal dismissed the appeal.

Family Law - Topic 661

Husband and wife - Marital property - Marriage contract - Effect of - Spouses separated - They had executed a marriage contract in 1994 in which they agreed, inter alia, that any property owned jointly by the parties would be separated equally in the event of separation - The wife sued the husband, seeking repayment of a sum she advanced for the purchase of the parties' matrimonial home - She argued that the operation of the marriage contract was unfair having regard to the circumstances relating to the acquisition of the home, in particular, her lump sum contribution and her unforseen health problems - She also argued that the husband had agreed that the sum would be repaid - The trial judge dismissed the action - She held that both parties had made contributions to the home, including the husband's monthly and annual contributions to the costs of maintaining and retaining the home - She further held that both parties were aware of the requirements to validly amend the agreement and they had not taken the necessary steps to fulfill those requirements - Finally, the trial judge held that the agreement did not operate unfairly because of the unforeseen health problems - The British Columbia Court of Appeal dismissed an appeal - See paragraphs 19 to 37.

Family Law - Topic 3248

Separation agreements, domestic contracts and marriage contracts - Terms - Release or waiver - Spouses separated - They had executed a marriage contract in 1994 in which, inter alia, the wife waived any right to spousal support - The wife sued the husband, seeking spousal support - She argued that the operation of the marriage contract was unfair having regard to the circumstances, i.e., she stopped her employment as a real estate agent to move with her husband to British Columbia and her unforseen health problems - The trial judge dismissed the action - She found that the wife had never applied for a real estate licence in British Columbia and concluded that the wife's lack of outside employment was a result of her choice - In essence, the wife had retired - The trial judge held that the objective of the marriage contract was met as the wife left the marriage with the majority of the assets of value - The trial judge also rejected the assertion that the wife was unable to achieve and maintain self sufficiency where she had been an independent business woman prior to the marriage - The British Columbia Court of Appeal dismissed an appeal - See paragraphs 38 to 44.

Family Law - Topic 3266

Separation agreements, domestic contracts and marriage contracts - Enforcement - Distribution of property - [See Family Law - Topic 661 ].

Family Law - Topic 3361

Separation agreements, domestic contracts and marriage contracts - Effect of agreement - Waiver of right to maintenance - [See Family Law - Topic 3248 ].

Family Law - Topic 3377

Separation agreements, domestic contracts and marriage contracts - Variation - Grounds for refusal - [See Family Law - Topic 661 and Family Law - Topic 3248 ].

Family Law - Topic 3378

Separation agreements, domestic contracts and marriage contracts - Variation - Grounds - Unfairness - [See Family Law - Topic 661 and Family Law - Topic 3248 ].

Family Law - Topic 4002.4

Divorce - Corollary relief - Maintenance awards - Circumstances when refused - [See Family Law - Topic 3248 ].

Family Law - Topic 4006

Divorce - Corollary relief - Maintenance awards - Awards - Effect of agreements - [See Family Law - Topic 3248 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 18].

Hartshorne v. Hartshorne (2004), 318 N.R. 1; 194 B.C.A.C. 161; 317 W.A.C. 161; 236 D.L.R.(4th) 193; 2004 SCC 22, refd to. [para. 23].

Jorgensen v. Jorgensen, [1996] B.C.J. No. 1153 (S.C.), affd. (1998), 110 B.C.A.C. 75; 178 W.A.C. 75; 41 R.F.L.(4th) 294 (C.A.), refd to. [para. 26].

Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201, refd to. [para. 40].

Re Gregory et al. v. Canadian Allied Property Investments Ltd. et al. (1979), 11 B.C.L.R. 253; 98 D.L.R.(3d) 358 (C.A.), refd to. [para. 46].

Counsel:

B.M. Ray, for the appellant;

C. Buchan, for the respondent.

This appeal was heard on November 4, 2005, at Victoria, British Columbia, by Ryan, Huddart and Saunders, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Saunders, J.A., on April 26, 2006.