Family Law - Court of Appeal Directive on Expediting Family Law Appeals - application to extend time to file appeal books refused as there is no merit to the appeal and delay has resulted in prejudice to the respondents. Appeal dismissed as abandoned.
2000
BCCA 43 Brown v. Simon
A mother appealed the dismissal by a chambers judge of her application to vary an order
for child support under the Family Relation Act, based on a change of
circumstances, including the coming into force of the Federal Child Support Guidelines
since the previous order was made. The appeal was allowed, and a re-hearing of the
application to vary was ordered because the judge made no findings of fact as to the
father's income, the mother's income or the child's needs. Without such findings, the
court could not determine whether there was a substantial change in circumstances.
2000
BCCA 47 Kalasz v. Kalasz
Res judicata did not apply to preclude court from dividing family asset found to be a
"venture" in 1998, after 1994 Divorce Order had left open the possibility that
in other proceedings the asset might be found to be a beneficial interest in real
property. The issue had not been adjudicated upon, so could not be res judicata.
Special costs order also confirmed.
2000
BCCA 55 Nataros v. Nataros
Family Law; Division of Assets; Maintenance. Upon divorce after a long marriage,
the trial judge delivered a comprehensive judgment dividing family assets and providing
spousal maintenance to wife for 30 months during the expected period of her educational
program. Held: trial judgement should not be disturbed except for spousal maintenance
which is increased and ordered to be reviewed after expiration of 30 months period.
At issue was the terms of the judgment consequent upon reasons of the Court, reported at (1999), 175 D.L.R. (4th) 587, allowing an appeal from an award of child ‘support’. The Court fixes terms intending to bring to a close all issues relating thereto up to the date of its original reasons.
Family Assets; child and spousal maintenance; costs. Divorce after 14 year marriage, 4 children; trial judge found two sums received by husband before triggering event to be family assets which were divided 70:30 in wife’s favour which was not appealed; husband had been employed in highly paid work but unemployed at time of trial. His income was fixed at $225,000 for both Guideline and spousal maintenance; child maintenance to be reviewed in 15 months. Wife allowed increased costs. Held: Appeal allowed in part: two assets were not family assets; assumed income reduced to $150,000; spousal maintenance to be reviewed at same time as child maintenance; increased trial costs reduced to 50% of special costs; both parties to bear own costs of appeal.
2000
BCCA 106 Rossi v. Rossi
No reversible error on finding that certain property a family asset.
2000
BCCA 109 British Columbia Birth Registration No. 99-0733
Appeal by adoptive parents of an order granting custody of a ten month old child to
the natural father.
2000
BCCA 125 Scarlett v. Ministry of Families and Children
Review application of a decision of a Chambers judge with respect to indigent status.
That status was refused. No misunderstanding or misapplication of the law. No
misunderstanding of the facts. Review application dismissed.
2000
BCCA 129 Fontaine v. Fontaine
Appeal from an application to set aside two orders varying an earlier order for child
support. The Chambers judge who made the two orders concluded that he had erred in law but
would not remedy the error himself. The appeal is allowed and the original order restored,
with the income tax effects contemplated when the original order was made.
2000
BCCA 130 Reilly v. Reilly
This is an appeal on an application to vary a spousal maintenance award. The trial judge
refused the variation on the basis that no change in circumstances had been shown. But the
husband had left his law partnership and his income had shrunk from $150,000 a year to
$15,000 a year. It was decided on the appeal that there had been a change in circumstances
and spousal support should be reduced from $3,000 a month to $2,000 a month.
2000
BCCA 147 Krangle (Guardian ad litem of) v. Brisco
Damages – Wrongful birth – Cost of care of disabled child after age 19 –
Trust for damages for cost of future care The appellant parents appealed the
decision of the trial judge refusing to award damages for the cost of future care of the
appellants’ disabled child after he reaches age 19, except for a contingency
allowance. Held. by a majority, that ss. 87 and 88 of the Family Relations Act (as
amended after the trial) imposed a legal obligation on the parents to pay the costs of
care of their child after age 19 for which they were entitled to be awarded damages from
the defendant. A trust should be imposed on the damages so awarded to ensure that the
award is used for its intended purpose. McEachern CJBC Dissenting in part: held that
the amendments to the Family Relations Act, although neither retroactive nor
retrospective, do not operate to deprive the defendant of the defence he had against a
part of the claim, and the power to establish a trust in these circumstances is doubled.
2000
BCCA 167 Van de Perre v. Edwards
Trial judge had awarded custody of a young boy to his mother, despite finding the
boy’s best interests lay with the wife of the father. The trial judge felt it was
likely the father’s marriage would not last. The appeal of the father was allowed and
custody awarded to the father and his wife. The trial judge had erred in not considering
the environment in which the child would probably be raised; had not apparently engaged in
the close analysis of the parents’ respective parenting abilities, as opposed to
their conduct; and had not considered racial difficulties the child would likely face in
both environments.
2000
BCCA 358 Aziz v. Aziz
The appeal of the order dismissing an application to vary child support and to cancel
arrears of child support was dismissed. So too, the appeal of the order dismissing
constitutional challenges to the Application of the Federal Child Support Guidelines and
the Family Orders and Agreements Enforcement Assistance Act was dismissed. The
constitutional questions were not adequately particularized in the notices given.
2000
BCCA 364 Baker v. Blodgett
After the breakdown of an 18 year common-law relationship, a trial judge ordered equal
division of most assets, but held the parties entitled to retain vehicles and RRSP
accounts held in their respective names. The order was affirmed, the evidence failing to
establish either a resulting or constructive trust.
2000
BCCA 367 Hama v. Werbes
The appellant Werbes was found guilty of civil contempt in a family matter for
"wilfully disregarding" two court orders. The Court (Southin, Finch and
Braidwood JJ.A) allowed his appeal. No one should be found in contempt without the order
to be obeyed being clear and precise and the facts in support of wilful
disobedience constituting proof beyond a reasonable doubt. The orders in this case were
not clear and precise. For instance, it was not clear that an order giving Hama conduct of
sale over a Ferrari meant that Werbes must immediately transfer possession of the car.
Another ground for the finding of civil contempt is dismissed because Hama did not even
cite it in her Notice of Motion. The final order in this case was also not appropriate, as
a declaration of contempt must state with precision the exact nature of the contempt, and
not be a general declaration of contempt.
2000
BCCA 398 Ebrahim v. Ebrahim
Contempt of court application in family matter remitted to S.C.B.C. to allow appellant
to apply to amend her Notice of Motion. Notice containing contempt citation had listed
several dates of alleged disobedience of access order, but court below had found contempt
on a date not listed.
2000
BCCA 406 Wait v. Wait
Appeal from child support order turning on proper application of s. 7 of the Federal
Child Support Guidelines. Issue of whether Montessori pre-school for
three-year-old was a "necessary and reasonable" extraordinary expense. Appeal
allowed.
2000
BCCA 424 Stowe-Wall v. Wall
The appellant, acting in person, filed many applications to the Supreme Court in a highly
contested divorce action. The action is now being handled by a case management judge in
Supreme Court. The order prohibiting the appellant from filing further applications was
set aside in light of this development. The appellant's conviction for contempt of court
for failure to pay child maintenance was set aside. The appellant's submission was
accepted that he had not been able to meet the case against him.
2000
BCCA 426 Champoise v. Prost
The findings of a secret trust in favour of the deceased’s son over two
properties owned in joint tenancy by the deceased and her husband. There was no evidence
on which such secret trusts of the property could be found. The wills variation claim had
not succeeded at trial because the trial judge found the secret trusts had made adequate
provision for the son. On appeal, held that as the findings of secret trusts could not
prevail, it was appropriate, considering Tataryn v. Tataryn Estate [1994] 2
S.C.R. 807, that the will be varied in favour of the son.
2000
BCCA 434 Da Costa v. Da Costa
Family Law - Costs
2000
BCCA 446 Jack v. Director of Child, Family and Community Service
In appeal from judgment giving answers to "stated case" questions
in a child protection proceeding, court held that since original decision that children
were in need of protection was not appealed, this decision could not be questioned in
subsequent proceedings. However, court partially allowed appeal concerning permissible
scope of evidence that could be led at subsequent hearing in order to permit hearing judge
to make unfettered decision concerning admissibility of evidence.
2000
BCCA 447 Lowcay v. Lowcay
The trial judge committed no error in fact or in law in making the very difficult
decision to grant sole custody of two young children to their mother who planned to
remarry and move to Ontario. The appeal was dismissed.
2000
BCCA 455 A.S. & J.L.v. D.K. & M.W.
The aunt and uncle of a six year old child applied for custody of her, relying on a
written agreement between them and the child's parents, who did not live together. The
trial judge granted custody to the child's father, general access to the mother and
specified access to the aunt and uncle. The Court of Appeal dismissed an appeal from this
order. The custody agreement was an important consideration, but was not determinative.
The case was to be decided on a full and balanced consideration of all factors touching on
the best interests of the child. No error was shown in the trial judgment that would
justify its reversal.
2000
BCCA 504 Montalbetti v. Montalbetti
The appellant mother applied to vary a child support order made before the Federal
Child Support Guidelines came into effect. The chambers judge made an order that the
respondent pay $175 per month for extraordinary expenses but declined to vary the monthly
child support order to accord with the Guideline table. In declining to vary the monthly
child support order, the chambers judge purported to be exercising a discretion. The order
for extraordinary expenses was not appealed. Appeal allowed and order for
monthly child support varied to accord with the Guideline table. If the court determines
that a child support order should be varied, the application of the Guidelines becomes
mandatory under s. 17(6.1) and subject to the exception in 17(6.2) of the Divorce
Act. Absent a finding of undue hardship under s. 10 of the Guidelines or a finding
under s. 4 that the income of the paying spouse exceeds $150,000, the court had no
discretion to depart from the table amount.
The parties were spouses who separated. They went to trial over the issues of custody and access to their children, the division of their assets, and support obligations. The trial judge awarded custody to the respondent wife, reapportioned the assets in the respondent’s favour, awarded child support, and awarded spousal support for an indeterminate period of time. Prior to the entry of the trial order the appellant husband made application to reduce the amount of the support orders, but the application was dismissed. The issues on this appeal centered on the division of assets, and particularly the valuation of the printing brokerage business awarded to the appellant and the valuation of the family home. The husband also appealed the support orders. Cumming J.A. for the Court dismissed the appeal. On the issue of the division of assets, Cumming J.A. found that the trial judge did not err by preferring the valuation of the company done by the expert retained by the respondent as opposed to the valuation done by the expert retained by the appellant. The trial judge also did not err in his valuation of the family home. On the issue of support, Cumming J.A. held that the trial judge did not err in calculating the amount of maintenance by relying on the husband’s actual income, in awarding spousal support for an indeterminate period, and in awarding indeterminate spousal maintenance without providing the appellant means to monitor the changes in the respondent’s financial circumstances. Furthermore, the trial judge did not err in dismissing the appellant’s application to reduce the support orders on the basis that there was no change of circumstances.
2000
BCCA 474 Metzner v. Metzner
On remand from S.C.C., appeal allowed from previous decision of B.C.C.A. fixing child
maintenance otherwise than Table amount mandated by Guidelines.
The Family Relations Act, s. 96(2), permits a court to cancel arrears of child maintenance if it would be grossly unfair not to cancel them. The evidence before the Chambers judge appealed from established that it would be grossly unfair not to cancel some of the arrears. The order of the Chambers judge cancelling all of the respondent's arrears was set aside and an order cancelling part of them substituted.
2000
BCCA 527 Dyal v. Dyal
Division of Family Assets- Unfairness; Recovery of Double Costs The husband appealed
the division of family assets, while the wife cross-appealed the order as to costs. Held:
The division of assets at trial was unfair having regard to the duration of the marriage,
the date when the property was acquired and the needs of each spouse to become or remain
economically independent. The wife made an offer to settle only three days before trial,
thus it did not comply with the seven-day rule under R. 37 of the Rules of Court. The
trial judge correctly exercised his discretion in refusing to make an order as to double
costs.
2000
BCCA 568 Skalska v. Romanczuk
The court reviewed and varied one aspect of an order resolving disputes about property
by a couple living as if they were married. At issue was the trial judge's application of
the principles of unjust enrichment.
2000
BCCA 574 Berg v. Berg
Applications by plaintiff below (respondent here) to dismiss appeals of
defendant/appellant arising from judgment of Blair J. made 3rd September, 1999, ordering
divorce of parties, retention and distribution of certain assets, and payment of support
to plaintiff. Appeal CA027213 stayed as unnecessary. Appeal CA026388 restored to active
list on condition that appeal book and transcript be filed on or before 26th January,
2001.
2000
BCCA 595 Moghaddam v. Moghaddam
Family law – Family assets – Access An appeal from orders dealing with
determination and division of family assets, custody and access was dismissed with
clarification that no order had been made with respect to a certain asset in dispute.
2000
BCCA 620 Hollenbach v. Hollenbach
FAMILY – CHILD SUPPORT – CHILD SUPPORT GUIDELINES –
WHETHER TABLE AMOUNT INAPPROPRIATE Mother sought variation of child support award.
Chambers judge awarded child support in an amount less than the Child Support Guidelines
table amount. Mother appealed, arguing that chambers judge underestimated father’s
income and erroneously deviated from the table amount. Held: Appeal allowed and the order
varied by substituting the table amount for child support. The chambers judge had not
erred in calculating the father’s income but there was no proper basis for deviating
from the table amount. The chambers judge erroneously examined the issue of the
children’s needs from the perspective of their present lifestyle and with reference
to a budget prepared by the mother which stayed within the amount of the previous support
order and did not attempt to meet the table amount. The father had not met the burden on
him to demonstrate that the table amount was inappropriate on clear and compelling
evidence. He had not shown that the table amount could not have been useful to the
children having regard to the standard of living of other children of wealthy parents.
2000
BCCA 631 Boleak v. Boleak
Appeal allowed of decision to refuse to hear application to vary custody order on the
merits. Application remitted to Supreme Court for hearing on merits.
2000
BCCA 633 A.L. & J.L. v. D.K. & M.W.
Court of Appeal refusing to interfere with the exercise of a trial judge’s
discretionary order on costs in a child custody case. Costs of appeal and cross appeal
following the event.
2000
BCCA 640 McGrath v. Thomsen
Appeal from an order further restricting a mother's access to her 10 year old son
dismissed.
2000
BCCA 661 Hubar v. Jobling
Appeal from the order of a chambers judge dismissing the appellant’s claim for a
monetary award based on the principles of unjust enrichment set out in Peter v.
Beblow, [1993] 1 S.C.R. 980. Held: Appeal allowed. During their 7-year
relationship, the appellant made direct and indirect contributions to the
respondent’s property resulting in an unjust enrichment of the respondent. The
appropriate remedy was a monetary award based on the "value survived" approach.
2000
BCCA 662 Huculak v. Huculak
Appeal from refusal of an application by husband for variation of spousal maintenance
- Appeal dismissed as court not finding error in conclusions of Chambers judge.