COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
Pisarski v. Piesik, |
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2018 BCCA 326 |
Date: 20180808
Docket: CA44632
Between:
Agnieszka Ilona Pisarski
also known as Agnieszka Ilona Pisarska
Appellant
(Plaintiff)
And
Lukasz Dominik Piesik
Respondent
(Defendant)
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Before: |
The Honourable Madam Justice Fenlon (In Chambers) |
On appeal from: An
order of the Supreme Court of British Columbia, dated
June 30, 2017 (A. I. P. v. L.D.P., 2017 BCSC 1135, Vancouver Docket
E141027).
Oral Reasons for Judgment
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Counsel for the Appellant (via teleconference): |
M. Wesley |
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Counsel for the Respondent (via teleconference): |
B. Hastings |
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Place and Date of Hearing: |
Vancouver, British Columbia August 7, 2018 |
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Place and Date of Judgment: |
Vancouver, British Columbia August 8, 2018 |
Summary:
Application for extension of time to file appeal books and factum ten months late. Held: Application granted. The merits of the appeal are not strong but they are not inarguable. The appellant explained the delay on the basis that the law on the issue under appeal has been in flux. This Court does not generally look favorably on a “wait and see” approach to prosecuting appeals. Although this application is close to the line, it is in the interests of justice to grant the extension sought.
[1] FENLON J.A.: The appellant, Agnieszka Ilona Pisarski, seeks an order that the time to file her appeal books and factum be extended to August 31, 2018.
[2] The parties were married in September 2006 and separated in March 2014. They have two young daughters, ages four and nine.
[3] Prior to the marriage, both parties owned property. Ms. Pisarski owned a condominium on Wilson Avenue in Burnaby (the “Wilson Property”), which she sold in March 2006. Mr. Piesik owned a home with his mother on Matapan Crescent in Vancouver (the “Matapan Property”). The mother’s interest was later transferred to the parties for a nominal consideration.
[4] Following their marriage, the parties lived at the Matapan Property until December 28, 2006, when the parties purchased and then moved into a house on Fulton Avenue in Burnaby (the “Fulton Property”). The purchase of the Fulton Property was partially funded by refinancing the Matapan Property and from the net sale proceeds of the Wilson Property.
[5] After the parties separated in 2014, the Fulton Property was sold. 80% of the proceeds were divided equally. By subsequent order of the trial judge in November 2017, the balance from the sale of the Fulton Property remains in trust until further order of the Supreme Court of British Columbia, an order of this Court, or written agreement by the parties. In effect, the trial judge stayed the distribution of the final 20% of the sale proceeds pending the outcome of the appeal.
[6] Prior to the trial, parenting time was set according to an order of Madam Justice Duncan made on September 14, 2015, which gave Ms. Pisarski more than 50% of the parenting time.
[7] The main issues at trial were division of property and parenting time. The order has not been entered, although I understand the parties have agreed on its form and have signed it.
[8] The trial took place between May and September 2016. On June 30, 2017, in reasons indexed as 2017 BCSC 1135, Justice Funt concluded the Fulton Property was family property. He did not accept Ms. Pisarski’s testimony that there was a pooling of funds without an intention of each spouse to gift their respective contributions for the purposes of the marriage (at para. 48). Thus, he concluded that while the Matapan Property and a large portion of Ms. Pisarski’s total contribution of $351,000, most of which was derived from the sale of the Wilson Property, could have been excluded property, they had become family property, referring to this court’s decision in V.J.F. v. S.K.W., 2016 BCCA 186 (at para. 78). In contrast, the judge observed the parties had taken no steps to keep funds separate. He ordered that the remaining net sale proceeds of the Fulton Property be shared equally at para. 48. However, he treated Mr. Piesik’s $92,000 RRSP held at the time of marriage, as excluded property.
[9] Mr. Piesik sought joint guardianship and equal parenting time. Ms. Pisarski agreed to joint guardianship but proposed a parenting time arrangement whereby Mr. Piesik would have less than 50% of the time with their daughters. The trial judge found that both parties were capable and loving parents. He concluded equal parenting time was in the best interests of each child and ordered a graduated schedule geared towards achieving equal parenting time in the future.
[10] Since Ms. Pisarski did not object to Mr. Piesik’s proposal regarding child support and it accorded with usual practice, the judge adopted that proposal subject to Mr. Piesik paying full Guideline support until he had at least 40% of the parenting time.
[11] On July 31, 2017, Ms. Pisarski filed a notice of appeal, which frames the issues on appeal this way:
With respect to property division:
a) The order of Mr. Justice Funt made on 30 June 2017 with respect to property division be set aside in its entirety and the evidence that was presented be reconsidered in light of the correct applications of the presumptions of advancement and of resulting trust; or,
b) A declaration that the $351,000 contribution made by the Appellant to the purchase of the Fulton Property is excluded property, and that the division of property be reconsidered as a result of that declaration; or,
c) An order that the Appellant receive an unequal division of property;
With respect to the child issues:
d) An order that the order of Mr. Justice Funt made on 30 June 2017 with respect to the imputation of the Appellant's income be set aside, and the child support be recalculated accordingly; and,
e) An order that the parenting time schedule, including special occasions and vacation described in the order of Mr. Justice Funt made 30 June 2017 be set aside and reformulated to take into account the best interests of the children; and,
f) An order that the order of Mr. Justice Funt that child support payable by the Respondent will vary based upon the percentage of parenting time the Respondent has with the children be set aside.
[12] In her July 23, 2018 affidavit, filed in support of this application, Ms. Pisarski says the main issues on appeal will relate to property division and parenting time. Regarding the former, Ms. Pisarski says the issue is whether the trial judge erred in concluding the funds she acquired before the relationship began and contributed to the down payment on the family home were no longer excluded property.
[13] Ms. Pisarski filed both the appeal record and the transcript (which consists of 551 pages) within the time limits provided for by the Court of Appeal Rules. The Appeal Books and her factum should have been filed by September 30, 2017, but the motion to extend time was filed almost ten months after that deadline.
[14] Ms. Pisarski provides two reasons for the significant delay in filing the appeal books and her factum.
[15] With respect to the appeal books, she says they have been prepared but have not been filed due to what she describes as a miscommunication between JC Word Assist and her lawyer that arose in November 2017. Ms. Pisarski has provided no explanation as to why the appeal books have not been served and filed between the end of November and the present.
[16] With respect to the factum, she says the law in relation to grounds of appeal (a) through (c) has been in a state of flux since the time she filed the notice of family claim in 2014. At that time, she says her lawyer advised her that Remmem v. Remmem, 2014 BCSC 1552, was the leading case. She understood that decision to say that funds paid toward the purchase of a family home will continue to be excluded property even if the family home is held in joint tenancy. However, in April 2016, this Court released V.J.F., which ruled that a spouse can gift otherwise excluded property in accordance with the presumption of advancement. The trial judge followed V.J.F., referring at para. 78 to the presumption of advancement. However, in July 2017, subsequent to V.J.F. and approximately three weeks after the decision under appeal was pronounced, H.C.F. v. D.T.F., 2017 BCSC 1226, was released. Ms. Pisarski says that case effectively limited the effect of V.J.F. She also points to additional lower court decisions on this topic that were released as recently as January 2018, which have also contributed to the understanding of the law and the application of the excluded property provisions. She says “the state of the law on the issues I want to appeal has settled down enough that I should be able to complete and file a factum by August 31, 2018.”
[17] In his July 26, 2018 affidavit, Mr. Piesik says he would be prejudiced by an extension of time. Based on the final order, he says he is entitled to in excess of $112,000, which is currently being held in trust and accruing interest at a minimal rate. If he had the money now, he would be able to pay off his mortgage and save on interest payments. He says that for every month the matter continues, he is losing more than $192.
[18] The criteria for whether an extension of time should be granted are set out in Davies v. C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 at 259-60 (C.A.), and may be summarized as follows:
a) Was there a bona fide intention to appeal?
b) When were the respondents informed of the intention?
c) Would the respondents be unduly prejudiced by an extension of time?
d) Is there merit to the appeal?
e) Is it in the interests of justice than an extension be granted?
[19] The Davies criteria apply, with appropriate modifications, to applications to extend the time for taking any step necessary in the prosecution of an appeal: Vancouver City Savings Credit Union v. R.D. Backhoe Services Inc., 2011 BCCA 159 at para. 8 (Chambers), reconsideration denied 2012 BCCA 79; E.M. v. British Columbia Society for the Prevention of Cruelty to Animals, 2018 BCCA 194 at para. 14 (Chambers). Generally speaking, the Davies criteria will be applied less stringently when extensions of time are sought for the taking of necessary steps in the prosecution of the appeal as opposed to the initiation of an appeal: Hydro Fuels Inc. v. Moran (1993), 25 B.C.A.C. 139 at para. 9 (Chambers).
[20] The first two factors are not in dispute. The appellant has intended to appeal and the respondent was made aware of that intention through the filing of the notice of appeal, appeal record, and transcripts, and communications in November 2017 about a consent to extend time to file the appeal books and factum. This application turns on the last three factors: (c) prejudice to the respondent if an extension is granted, (d) merit of the appeal and (e) the interests of justice, which is the overarching factor that subsumes the others.
[21] I begin by acknowledging the existence of prejudice to the respondent from the delay occasioned to date. The stress and uncertainty of continuing litigation is real, in particular in a family case where the parties need to move on with their lives and shared time with children is being challenged. In addition, there is the financial prejudice of having money from the sale of the family home tied up in trust as a result of the stay of the trial order pending appeal. In that regard, the prejudice relates to the additional months the appeal will extend over if this motion is granted. I have considered that prejudice carefully, but I do not consider it to be “undue” in all the circumstances.
[22] As for the merits of Ms. Pisarski’s grounds of appeal, the limited material before me suggests that they are not particularly strong and that the appellant may well face an uphill battle in attempting to persuade a division of this Court to intervene. In this regard, I note that the judge made a finding of fact at para. 48 of his reasons that there was an intention on the part of each spouse to gift their respective contributions to the acquisition of the Fulton Property for the purposes of the marriage. In V.J.F. at para. 48 this Court stated that the question of whether a transferor made a gift such that excluded property is no longer excluded is a question of fact. The Court also noted there are methods that spouses can take when transferring excluded property to protect against losing the exclusion, such as the transferor requiring the transferee to acknowledge that no gift of the excluded property is intended. The trial judge considered this when he analyzed the evidence, noting Ms. Pisarski took no steps to keep the funds separate or document that her contribution should be kept separate. Ms. Pisarski has advanced no argument as to how she would overcome the standard of review applicable to this ground of appeal. Those findings do not appear to rely on the presumption of advancement and its effect on excluded property that the appellant says underlie her appeal.
[23] In addition, Ms. Pisarski has not clearly identified any error in the trial judge’s order relating to what she describes as “child issues”, other than a potential miscalculation in the imputation of her income. With respect to the shared parenting schedule and child support, those decisions are inherently exercises of discretion, and finality is a significant consideration. They will be afforded considerable deference on appeal: R.E.Q. v. G.J.K., 2012 BCCA 146 at para. 33.
[24] While I would therefore characterize the grounds of appeal as weak, I am not prepared on the limited material before me to say that they are inarguable or entirely devoid of merit.
[25] I acknowledge as well that, while this is the first extension of time sought by the appellant, a substantial period of time has passed — ten months — since the appellant’s appeal books and factum were due. Her explanation for the delay is incomplete and unsatisfactory.
[26] At the same time, the appellant has taken steps to prosecute this appeal and has incurred significant costs in obtaining the appeal books and transcripts. I also take into account that the law in relation to excluded property and the presumption of advancement which the appellant relies on, perhaps unadvisedly, to support her appeal has been in a state of flux and has caused significant uncertainty in respect of the assessment of her prospects on appeal as she has framed it. That does not justify the strategic decision to delay filing on time, but it explains some of it. I agree with the respondent that “wait and see” appeals are not to be encouraged, and are not generally in the interests of justice, but this was, in my view, a unique situation because the law has been shifting back and forth, both during the trial and in the period between the order in issue and the perfecting of this appeal as the excluded property provisions of the Family Law Act have been interpreted by the trial and appellate courts.
[27] As I said at the hearing, this application is very close to the line, but I am of the view that it is in the interests of justice to grant the appellant the extensions of time she seeks.
[28] The appeal books and factum must be filed and served upon counsel for the respondent on or before August 31, 2018. The appellant can have no reasonable expectation that any further extension of time will be granted. In light of that, if this order is not complied with, counsel for the respondent has leave to apply to dismiss the appeal as abandoned.
[29] In addition, I award the respondent his costs in relation to this application in any event of the cause.
“The Honourable Madam Justice Fenlon”