COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

McClaughry v. McClaughry,

 

2018 BCCA 91

Date: 20180301

Docket: CA44465

Between:

Maureen Wing Che McClaughry

Appellant/
Respondent on Cross Appeal

(Plaintiff)

And

Lester Andrew McClaughry

Respondent/
Appellant on Cross Appeal

(Defendant)

Before:

The Honourable Madam Justice Fenlon

(In Chambers)

On appeal from:  An order of the Supreme Court of British Columbia, dated
May 1, 2017 (McClaughry v. McClaughry, 2017 BCSC 966,
Vancouver Registry No. E72326)

Oral Reasons for Judgment

No one appearing on behalf of the Appellant

Respondent appearing In Person:

L. McClaughry

Place and Date of Hearing:

Vancouver, British Columbia

March 1, 2018

Place and Date of Judgment:

Vancouver, British Columbia

March 1, 2018

 

Summary:

Ms. McClaughry applies to extend the time to file her factum and appeal books in relation to her appeal of a spousal support order. Mr. McClaughry applies to strike the appeal. Held: Application to extend time to file dismissed; appeal dismissed as abandoned. The parties have been embroiled in litigation for 11 years and the appeal has little merit.  It is not in the interests of justice to grant Ms. McClaughry a fourth extension of time to file materials in these circumstances; there is little prospect that a new deadline would be met in any event.

[1]          FENLON J.A.: I have before me two applications. Ms. McClaughry’s application to extend time to file her factum and appeal books, and Mr. McClaughry’s application to strike Ms. McClaughry’s appeal. These are really two sides of the same issue, which is whether Ms. McClaughry should be given leave to continue with her appeal.

[2]          Ms. McClaughry is not present this morning. These applications were originally scheduled to be heard on Monday, February 26, 2018. Mr. McClaughry attended, but Ms. McClaughry did not. I adjourned the applications to today’s date, March 1, and by memorandum informed Ms. McClaughry that today’s date would be pre-emptory on her, meaning that if she did not attend I would proceed with the applications in her absence based on the written materials. This morning, Ms. McClaughry contacted the registry and advised that she would not be attending as she had not slept well. I will, accordingly, proceed to consider the applications before me as set out in my memorandum to the parties.

[3]          I turn first to the history of this matter. The underlying appeal is from an order made by Madam Justice Harris on May 1, 2017, addressing spousal support for Ms. McClaughry. Ms. McClaughry sought at that time a review of spousal support, payment of arrears, and an increase in support. Support had initially been determined by Madam Justice Boyd in December 2008, following a trial.

[4]          Before Madam Justice Harris, Mr. McClaughry sought to bring an end to the support payments. In her Reasons for Judgment, Madam Justice Harris noted the parties had a tumultuous 25 year relationship, married in 1990 and separated in May 2007. They have two sons, who live with their father and are estranged from their mother. Mr. McClaughry was a manager of an automotive shop and an instructor of automotive mechanics. He now works as a buyer for a metal recycling company. Ms. McClaughry has worked primarily as a hair stylist. At the time of the hearing before Madam Justice Harris, Mr. McClaughry was 60 and Ms. McClaughry was 61.

[5]          Justice Harris noted at that point the parties had been in court 20 times. She observed that the basis of support, as determined by Madam Justice Boyd at trial, was non-compensatory, saying:

[51]      In that regard, I note that the trial judge did not state in her reasons whether entitlement was justified on compensatory or non-compensatory grounds. In her first decision, Justice Boyd found, among other things, that: both parents took leaves of absence to care for the children when they were young, both parties returned to work following their leaves of absence, and both parents sought to adjust their work schedules around the children during the marriage. As noted above, the reasons for spousal support refer to the claimant’s need to re-establish herself financially after the trial. In her second decision, Justice Boyd noted that the claimant was the primary caregiver when the children were young but there was subsequently a shared parenting arrangement.

[52]      I conclude from the reasons expressed by the learned trial judge that the claimant’s entitlement to spousal support was mainly non-compensatory. Although there may have been a compensatory element to the extent that Justice Boyd found the claimant was a primary caregiver when the children were young, I note that she also found that the respondent also took time off work to care for the children when they were young and thereafter the parties shared parenting of the children as they got older. She also found that both parties continued to work in their respective careers after they had children.

[6]          Justice Harris imputed income of $16,900 to Ms. McClaughry, finding that she had the capacity to do and earn more than she was doing to support herself. She noted both parties had modest financial resources. Ms. McClaughry owned a condominium but had lower income; Mr. McClaughry owned no real estate but had more savings and better income — but he had also borne the burden of supporting their sons since separation. Ultimately, after a careful review of the law and circumstances, Justice Harris fixed Mr. McClaughry’s income at $56,846 back to December 2015. She ordered him to pay spousal support of $700 per month, which resulted in arrears of about $100 per month because he had been paying $600. She ordered this support to continue until February 1, 2018, to enable Ms. McClaughry to complete a six month training program and find work in that field, although she noted that Ms. McClaughry had never specifically stated what she was training to do.

[7]          Both parties appealed from Justice Harris’ orders. Mr. McClaughry wants to have his income set at $51,500 rather than $56,846. He also seeks an end to spousal support at an earlier date. Ms. McClaughry, for her part, wants spousal support to continue beyond February 1, 2018.

[8]          I turn now to the applications before me. I note that both were filed with insufficient notice under the Rules, but an abridgment of time was consented to by the other party. I will deal first with Ms. McClaughry’s application to extend time to file the appeal books, factum and transcript excerpts. As I have already noted, Justice Harris’ order was made May 1, 2017. Ms. McClaughry’s notice of appeal was filed in time on May 29, 2017, and amended on September 11 and again on September 22, 2017. She has had considerable difficulty complying with the Rules and subsequent filing deadlines.

[9]          On August 21, 2017, Madam Justice MacKenzie granted an extension of time to August 24 for Ms. McClaughry to file her appeal record, as well as an extension to file her factum by September 23, 2017. Ms. McClaughry attempted to file her appeal record on August 24, 2017, but it did not comply with the Rules and was not accepted.

[10]       The matter was referred to me for case management in October 2017. The first case management conference was scheduled for November 6, 2017. Ms. McClaughry called to say she would be late but did not attend the conference. Mr. McClaughry was present.

[11]       I sent the parties a memorandum on November 8, 2017, providing instructions on the scope of the appeal and directing Ms. McClaughry to attend before the Registrar to settle the appeal record.

[12]       I granted an extension to December 8, 2017, for Ms. McClaughry to file her appeal books and factum and gave her until December 11, 2017, to serve them on Mr. McClaughry. The Registrar struck most of the appeal record and gave very specific directions as to what pages could and should be included in the appeal record. These deadlines were again missed by Ms. McClaughry.

[13]       At a further case management conference on January 17, 2018, Ms. McClaughry sought a further extension. She assured me that materials were close to being ready to file and that she could file the materials by January 25, 2018, without a problem. An appeal hearing date was set for April 16, 2018. I emphasized at some length at the case management conference, and reiterated in a memorandum confirming the revised deadlines, that this was a firm deadline if her appeal was to be preserved. That deadline too was missed. She made an effort to file and serve appeal books that were woefully outside of the requirements of the Rules. Mr. McClaughry proceeded to file his materials relating to the cross appeal according to the deadlines I had set.

[14]       The factors to be considered on an application for an extension of time are clear. They are set out in Davies v. C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 (C.A.):

1.         Whether there was a bona fide intention to appeal;

2.         Whether the respondents were informed of the intention;

3.         Whether the respondents would be unduly prejudiced by an extension;

4.         Whether there is merit in the appeal; and

5.         Whether it is in the interests of justice that an extension should be granted.

[15]       There is no question that factors one and two have been met. Mr. McClaughry was aware of the intention of Ms. McClaughry to appeal the order of Madam Justice Harris. This application then turns on factors three, four and five.

[16]       First, as to the merits of the appeal, there is little prospect of success based on the standard of review by which this Court is governed in respect of interfering with support orders. In my view, the chambers judge carefully reviewed the law and facts and balanced the competing interests in a case involving non-compensatory support.

[17]       Second, there is prejudice to Mr. McClaughry in granting yet another extension. He and Ms. McClaughry have been embroiled in litigation for 11 years. He says they have now been to court in excess of 40 times and the stress and frustration of not being able to move on with his life has been wearing on him and the parties’ sons. I accept that is so. There is a particular emphasis in family cases on resolving disputes within a reasonable time frame.

[18]       Third, in my view, it is not in the interests of justice to grant yet another extension. Ms. McClaughry’s materials should originally have been filed by the end of August 2017. It is now the beginning of March 2018. Three extensions have been granted and missed. Ms. McClaughry cites illness, late orders, confusion, and other reasons for these delays, but it is apparent that these are not new problems. Madam Justice Boyd in the decision following trial, at para. 2 of her reasons for judgment dated December 3, 2008, noted:

The action initially proceeded to trial before Allan J. on July 21, 2008, but was adjourned on the third day given the wife’s repeated failures to attend in the courtroom in a timely manner and failure to organize her materials so as to properly advance her case.

[19]       I appreciate that Ms. McClaughry is acting on her own without counsel. Both parties are. Significant assistance has been provided to her by both the Registrar and the registry staff, but she continues to be unable to prepare materials in compliance with the Rules and continues to miss deadlines, even after assuring me that her materials were all but ready to file. Indeed today she has chosen not to attend court. I see no reason to expect Ms. McClaughry to be able to comply with the Rules and meet deadlines even if a further extension were to be granted to her.

[20]       In the result, I conclude that it is not in the interests of justice to grant a further extension. I make that order mindful that Mr. McClaughry will nonetheless be proceeding with his cross appeal.

[21]       Accordingly, I dismiss Ms. McClaughry’s application for an extension of time to file her factum and other materials and I dismiss her appeal as abandoned. It is therefore unnecessary to address Mr. McClaughry’s application. Mr. McClaughry is entitled to his costs in relation to this application and cost of responding to the appeal of Ms. McClaughry which has now been dismissed. I set those costs, given the early stage of the appeal process, at $250. That is in addition to the $250 I ordered payable on February 26, 2018.

“The Honourable Madam Justice Fenlon”