While it is important to register any family law agreement with the Court to ensure that the agreement has the force of a Court Order, failing to file the agreement will not necessarily be detrimental to having the Court enforce the terms of the agreement as if the agreement was an Order of the Court.

In Smith v. Smith, 2018 BCSC 641, lawyers for the claimant and respondent were close to coming to an agreement between their clients.  Court proceedings were adjourned generally while the lawyers worked out the terms of the agreement, and both the claimant and respondent signed the draft copy of the Order several months later.  Unfortunately for the parties, the registry refused to file the agreement since it was “not in the proper form and it failed to address all of the property claims in the notice of family claim” (para. 13).

The claimant later attempted to have the written agreement declared a final Order by the Court.  The respondent sought to have the Order declared an interim Order, which would have given the Court the ability to vary the Order without a material change in the circumstances of the respondent, on the basis that the respondent thought the Order was an interim Order and that the respondent claimed she did not know the Order limited spousal support to a period of seven years.

The Honourable Madam Justice Murray wrote the following:

[20]        The order is entitled “Consent Order”. It is drafted in order form with the Supreme Court style of cause. It states clearly that it is before a Judge of the Court and that it is by consent. There is a line for signature by the Court. The respondent had counsel at the time of the settlement discussions and for approximately six weeks following during which terms were finalised. She does not dispute being involved via phone in the settlement discussions at the courthouse. She was clearly part of the negotiations after that session as she asked for and received material concessions from the claimant. After she released her counsel, she personally delivered to the claimant’s lawyer the order signed by her. She was undoubtedly aware that it was going to be filed with the Court.

[21]        The order is clear and easy to read.  The only reasonable inference to draw from the fact that she sought changes and eventually signed it, is that she read it.  The spousal support clause clearly specifies that support was to be for a period of seven years.

[22]        The order dealt with all outstanding matters between the parties, not just the matters that were to be reviewed by the Master that day.  That is inconsistent with it being an interim order.  There is nothing in the document that indicates that it is interim.

[23]        The respondent points to the passage that the parties must exchange their income tax information annually as an indication that this agreement was intended to be interim.  I disagree.  That is a standard clause in family orders.  The fact that an order is final does not preclude a party from bringing an application to vary if there is a material change in circumstance.

[24]        The respondent further argues that this is an agreement as opposed to an order.  Again it is entitled “Consent Order”, is drafted in order form with a line for a Judge’s signature and was intended to be filed in court.  The only rational conclusion is that the parties intended it to be an order of the court in full and final resolution of all matters in issue between them.

[25]        Accordingly, I find that the document in issue is a final order.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.