Halliday v. Halliday, 2015 BCCA 82
| Judge | Donald, Harris and Goepel, JJ.A. |
| Court | Court of Appeal (British Columbia) |
| Case Date | January 28, 2015 |
| Jurisdiction | British Columbia |
| Citations | 2015 BCCA 82;(2015), 367 B.C.A.C. 287 (CA) |
Halliday v. Halliday (2015), 367 B.C.A.C. 287 (CA);
631 W.A.C. 287
MLB headnote and full text
Temp. Cite: [2015] B.C.A.C. TBEd. MR.006
David William Halliday (appellant/plaintiff) v. Annette Lucille Halliday (respondent/defendant)
(CA042028; 2015 BCCA 82)
Indexed As: Halliday v. Halliday
British Columbia Court of Appeal
Donald, Harris and Goepel, JJ.A.
February 24, 2015.
Summary:
Spouses separated in 2008. In 2009, they entered into an agreement that was intended as a final settlement of all issues between them, including property division, pension division and spousal support (the "Separation Agreement"). On March 7, 2011, a final order for divorce was issued. On January 6, 2014, the wife commenced proceedings seeking an order to replace parts of the Separation Agreement. In particular, she sought an order for monthly spousal support in the middle of the Spousal Support Advisory Guideline range and an order for the division of certain assets. She indicated that the legal basis of her application was the Family Law Act (FLA). The husband applied to dismiss the wife's application on the basis that it was brought out of time pursuant to s. 198 of the FLA. Justice MacKenzie held that the wife's application was not statute barred pursuant to s. 198 of the FLA. The husband's application was dismissed. The husband appealed.
The British Columbia Court of Appeal allowed the appeal. The proceeding had been marred by a series of procedural errors and missteps. The court stated that "Whether the Notice of Family Claim and subsequent steps are nullities or mere irregularities, I need not decide. They clearly did not comply with the Family Rules and should be set aside: R. 21-5(1)(c). The matter never should have come before Justice MacKenzie in the form that it did ... the order that he made cannot stand and must be set aside". The wife was at liberty to bring on for hearing an application to set aside the Separation Agreement. The court stated that she would be well advised to amend that application to include a claim for spousal support under the Divorce Act. The court directed that the parties attend at a Judicial Case Conference before any further hearing was held.
Family Law - Topic 866
Husband and wife - Marital property - Distribution orders - Jurisdiction or application of statutes - See paragraphs 30 to 66.
Family Law - Topic 943
Husband and wife - Marital property - Distribution orders - Practice - Application - Procedure - See paragraphs 30 to 66.
Family Law - Topic 2405
Maintenance of wives and children - Practice - Application - How made - See paragraphs 30 to 66.
Family Law - Topic 2406
Maintenance of wives and children - Practice - Application - Limitation period - See paragraphs 30 to 66.
Family Law - Topic 3371.1
Separation agreements, domestic contracts and marriage contracts - Variation - Time for application to vary - See paragraphs 30 to 66.
Family Law - Topic 3379
Separation agreements, domestic contracts and marriage contracts - Variation - Practice - See paragraphs 30 to 66.
Cases Noticed:
Roberts v. Sands (E.) & Associates Inc. et al. (2014), 353 B.C.A.C. 217; 603 W.A.C. 217; 2014 BCCA 122, refd to. [para. 27].
Edgeworth Construction Ltd. v. Thurber Consultants Ltd. (2000), 147 B.C.A.C. 92; 241 W.A.C. 92; 2000 BCCA 453, refd to. [para. 27].
Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201; 2003 SCC 24, refd to. [para. 35].
Hartshorne v. Hartshorne, [2004] 1 S.C.R. 550; 318 N.R. 1; 194 B.C.A.C. 161; 317 W.A.C. 161; 2004 SCC 22, refd to. [para. 35].
N.R. v. B.B. et al., [2009] 1 S.C.R. 295; 385 N.R. 85; 266 B.C.A.C. 1; 449 W.A.C. 1; 2009 SCC 10, refd to. [para. 35].
Statutes Noticed:
Family Law Act, S.B.C. 2011, c. 25, sect. 198(2), sect. 198(3) [para. 36]; sect. 252 [para. 41].
Supreme Court Family Rules (B.C.), rule 2-1(1), rule 2-1(2) [para. 49]; rule 3-1(1) [para. 50]; rule 3-1(4.1) [para. 51]; rule 4-1 [para. 52]; rule 7-1(2), rule 7-1(3)(f), rule 7-1(4) [para. 55]; rule 7-1(9), rule 7-1(15) [para. 56]; rule 10-5(1), rule 10-5(2) [para. 53]; rule 21-5(1)(c) [para. 63].
Counsel:
J. Monier-Williams, for the appellant;
The respondent appearing in person.
This appeal was heard on January 28, 2015, at Victoria, B.C., before Donald, Harris and Goepel, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Goepel, J.A., at Vancouver, B.C., on February 24, 2015.
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...agreed to settle the litigation by way a consent order; · in any event, while Ms. Liu invokes Rule 21-5(1) and Halliday v. Halliday, 2015 BCCA 82, in support of her application to strike, subrule 21(5)(2) requires the court to treat procedural non-compliance "as an irregularity and [one whi......
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C.H.T. v. P.V.L., 2015 BCSC 419
...of such an agreement is one factor to be considered in determining whether spousal support should be awarded: Halliday v. Halliday , 2015 BCCA 82 at para. 35. [212] In order to determine the degree of deference the agreement is to be accorded, the court is required to engage in the two-step......
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Taherkhani v. Este, 2020 BCSC 101
...time limit for bringing a claim for division of property is two years from the date of the divorce. They rely upon Halliday v. Halliday, 2015 BCCA 82, in particular on paras. 33 and [33] Division of assets is a matter regulated entirely by provincial legislation. Parties can decide to divid......
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Bingham v. Bingham,
...entirely to that effect. [77] This Court first interpreted s. 252(2)(b) in Halliday v. Halliday, 2015 BCCA 82. The facts of that case were unusual. The parties had separated in 2008 and entered into a separation agreement in 2009. They commenced divo......
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Chan-Henry v. Liu, 2018 BCSC 2140
...agreed to settle the litigation by way a consent order; · in any event, while Ms. Liu invokes Rule 21-5(1) and Halliday v. Halliday, 2015 BCCA 82, in support of her application to strike, subrule 21(5)(2) requires the court to treat procedural non-compliance "as an irregularity and [one whi......
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C.H.T. v. P.V.L., 2015 BCSC 419
...of such an agreement is one factor to be considered in determining whether spousal support should be awarded: Halliday v. Halliday , 2015 BCCA 82 at para. 35. [212] In order to determine the degree of deference the agreement is to be accorded, the court is required to engage in the two-step......
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Taherkhani v. Este, 2020 BCSC 101
...time limit for bringing a claim for division of property is two years from the date of the divorce. They rely upon Halliday v. Halliday, 2015 BCCA 82, in particular on paras. 33 and [33] Division of assets is a matter regulated entirely by provincial legislation. Parties can decide to divid......
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Bingham v. Bingham,
...entirely to that effect. [77] This Court first interpreted s. 252(2)(b) in Halliday v. Halliday, 2015 BCCA 82. The facts of that case were unusual. The parties had separated in 2008 and entered into a separation agreement in 2009. They commenced divo......