B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

FAMILY 2001

• 2001 BCCA 718    Berg v. Berg
• 2001 BCCA 704    Empey v. Groves
  Appeal of an order dismissing an application to vary a consent order made after amendments to the Family Relations Act made the Federal Child Support Guidelines applicable to child support orders made under the provincial legislation. Variation application ought to have been considered under s. 96(1) of the Family Relations Act. Appeal dismissed as result in trial court supportable.
• 2001 BCCA 702    McDonald v. McDonald
  Appeal from the order of Madam Justice Quijano granting the wife a divorce after 25 years of marriage and re-apportioning the assets in favour of the wife. The husband challenged re-apportionment and the finding that private school fees for a child of the marriage are necessary extraordinary expenses within the meaning of the Federal Child Support Guidelines. Appeal dismissed.
• 2001 BCCA 682 Nelson v. Nelson
  FAMILY LAW - SPOUSAL SUPPORT - 27 YEAR MARRIAGE - There were no grounds to interfere with the award of spousal support to the wife of $1200 per month and the appeal was accordingly dismissed.
• 2001 BCCA 668    Atherton v. Atherton
  The appellant wife appealed the judgment dividing the family assets equally and ordering that she pay $650,000 as compensation to the husband. The trial judge found that both parties had failed to disclose the existence and value of family assets. Held: The trial judge erred in determining the value of the wife’s bank accounts at a date earlier than the trial date; in finding that the parties’ pensions were not family assets; and in failing to ascribe some value to undisclosed interests in family assets in the possession of the husband. The division of the disclosed assets was reapportioned 60% to the wife and 40% to the husband, and the compensation payment reduced to $371,663.
• 2001 BCCA 666    Kritharis v. Kritharis
  Main issues argued on cross-appeal were whether the trial judge erred in not taking into account the residual income tax liability on property expected to be retained by one of the parties and whether the trial judge erred in ordering the parties to bear their own costs. Cross-appeal dismissed. [See 2001 BCCA 443 as to father's appeal regarding custody.]
• 2001 BCCA 649    Romanyshyn v. Romanyshyn
  Appeal of orders made in an action brought under the Family Relations Act. The main issues are whether the trial judge erred in adjourning the appellant's application for support of the parties' 25 year old son rather than granting the order; in granting an order for spousal support for a four year period prior to the trial; and in making the orders he did respecting family assets.   Appeal allowed in part.
• 2001 BCCA 646    Sohang v. Savedoff
  Appeal from judgment in matrimonial cause determining family assets, their apportionment to the parties, and spousal support.   The trial judge misdirected himself by taking into consideration tax considerations in the absence of persuasive evidence concerning an investment account of the respondent which he directed she retain, as she had agreed to other concessions including not receiving spousal support.  Appeal allowed. Pursuant to s. 65 of the Family Relations Act, this Court reapportions the respondent's investment account three-quarters to the respondent and one-quarter to the appellant; however, as that reapportionment is sufficiently detrimental to the appellant and as the trial judge's dismissal of the respondent's claim for spousal support was founded on the respondent's proposal to make other concessions, the clause in the judgment below dismissing the claim for spousal maintenance is struck out and the question of maintenance is at large.
• 2001 BCCA 634    McCready v. McCready
  Appeal from an order for spousal support under the Divorce Act and orders made under Part 5 of the Family Relations Act dismissed except for order relating to one family debt.
• 2001 BCCA 629    Prittie v. Dorey
  Appeal dismissed – Family Matter – Refer to Reasons of Trial Judge.
• 2001 BCCA 625    Deventer v. Deventer
  The appellant’s action for return of jewellery she alleged was taken without her consent by the respondent, her former husband, and for damages for its value, was dismissed after a summary trial on the grounds that her claims were res judicata. Held: Appeal allowed and action remitted for trial. The wife claimed the jewellery in previous proceedings under the Family Relations Act, but no decision was made concerning its ownership and possession and the order requiring "the party in possession" of the jewellery to return it to the wife was unenforceable.
• 2001 BCCA 603    Ree v. Ree
  Appeal allowed in part from the trial judge’s allocation of matrimonial assets and debts. BCCA did not, however, interfere with the trial judge’s order of a pension "benefit split" of a matured pension on which survivorship option had been elected. While this split was not an equal one in terms of value, it was the best way to assure the wife a fair standard of living which would continue after husband’s death. Otherwise, spousal support would have been necessary.
• 2001 BCCA 577    Archibald v. Archibald
• 2001 BCCA 574    Low v. Low
  FAMILY LAW – DIVISION OF ASSETS - 70/30 apportionment of assets in favour of the wife upheld on appeal.
• 2001 BCCA 570    Marbach v. Marbach
  Appeal from judgment intended to resolve differences between parties on division of family assets which included a family farm and chattels, property in Nevada, and several bank accounts.  Judicial notice taken of rise in property values between 1998-200; value of property fixed at $235,000.00 rather than $220,000.00. Valuation by trial judge of chattels on farm not incorrect. Order for sale of Nevada property was correct. The provisions of s. 66(1) of the Family Relations Act permit the court to address issues between spouses arising from their joint ownership of property which is also a "family asset". Trial judge was not wrong in his calculation of a value for the rental income from the Nevada property. However, there was no evidence of bank accounts at the date of the triggering event; they should not have been included in the judgment.  Appeal allowed. Balance due to respondent reduced.
• 2001 BCCA 557    Midgeley v. Midgeley
  The Court dismissed appeals from an order dividing family assets under the Family Relations Act, an order for spousal maintenance, and an order for child support under the Divorce Act. There was no error in principle, and no finding of fact unsupported by evidence.
• 2001 BCCA 552    Lindsey v. Lindsey
  An application to dismiss appeal for non-compliance under the Rules of Court and the Court of Appeal Act, R.S.B.C. 1996, c. 77. Respondent’s application succeeds.
• 2010 BCCA 535    Boyd v. Boyd
  Injunction ordered under s. 67 of the Family Relations Act in case where Defendant alleged to have moved or to be moving assets out of British Columbia. The injunction operates only in personam against the Defendant, who has attorned; but for the sake of clarity will be subject to the proviso that it does not affect anyone other than the Defendant. This proviso eliminates Chambers judge’s concern re extra-territorial effect.
• 2001 BCCA 522    Walters v. MacDonald et al.
• 2001 BCCA 518    Blake v. Blake
  Trail judge's order of $10,000 was insufficient to equalize assets of parties which were split in 1990 by agreement without legal advice. The split was clearly unfair (the parties had been married for 45 years ), and husband was ordered to pay an additional $65,500.
• 2001 BCCA 497    Riddell v. Cordova
  The Court set aside an order dismissing a father’s application under Article 4 of the Hague Convention for the return of the parties’ 11-year-old daughter to Arkansas. The application was remitted to the trial court to be heard concurrently with applications for custody so that the effect on the daughter’s habitual residence of a notarized document signed by both parents could be considered on viva voce evidence rather than conflicting evidence by way of affidavit.
• 2001 BCCA 493    Legere v. Legere
  Application by respondent to have appeal of divorce order dismissed or in the alternative for security for costs.  Security for respondent’s costs of appeal to be posted by the appellant in the amount of $1,000; appeal stayed until security has been posted.
• 2001 BCCA 452     Kowalewich v. Kowalewich
  The Court set aside an order dismissing an application to vary child support so that the trial judge could consider new evidence counsel agreed should be admitted on appeal.
• 2001 BCCA 451     Kowalewich v. Kowalewich
  The Court made an additional order to prevent a potential miscarriage of justice caused by a misleading submission to the Court.
• 2001 BCCA 450     Kowalewich v. Kowalewich
  The Court varied a spousal support order under the Divorce Act to take into account a compensation payment made under the Family Relations Act. It also varied a child support order to accord with its view of the proper construction and application of the income determination provisions of the Child Support Guidelines.
• 2001 BCCA 445    Klassen v. Klassen
  In 1990, the parties' family assets were divided and a spousal maintenance order was made in an action under the Family Relations Act. The family assets included the shares in a car dealership. In 1994, the parties agreed that the appellant would buy the respondent's beneficial interest in the shares and part payment was made. In 1999, cross applications were brought by the parties seeking variation of the maintenance order. The respondent also sought to have the 1994 settlement agreement set aside on the ground that it was an unconscionable transaction. The chambers judge ordered an increase in the maintenance and, after concluding that the settlement agreement was unconscionable, made an order declaring the settlement agreement void.  Held: The appeal of the order increasing the spousal maintenance is dismissed. The application to set aside the 1994 agreement, being a claim for rescission, ought to have been brought by separate action rather than by motion in the previous Family Relations Act proceedings. The conclusion that the agreement was an unconscionable transaction is sustained. Issues of whether the respondent's delay in seeking rescission has so prejudiced the appellant as to make rescission unjust and whether the respondent can make restitution of what she received under the settlement agreement were not dealt with by the chambers judge. Both the order declaring the 1999 agreement void and the order for an accounting are set aside. Whether the 1994 agreement ought to be rescinded must be determined in proceedings brought in the trial court.
• 2001 BCCA 443    Kritharis v. Kritharis
  An order for sole custody was affirmed, no reversible error having been shown in the trial judge's disposition.
• 2001 BCCA 428    Phillips v. Phillips
  Issues on the appeal concern the division of family assets under Part 5 of the Family Relations Act and maintenance under the Divorce Act, specifically, whether the trial judge erred in not declaring that a lump sum payment received by the respondent as part of an early retirement package was a family asset; or alternatively, in not taking the retirement package into account in the division of family assets; in not reapportioning the proceeds of sale of the family home in the appellant's favour; and by awarding time limited spousal maintenance. Appeal allowed on the issue of whether the proceeds of sale of the matrimonial home ought to have been reapportioned.
• 2001 BCCA 415    Carr v. Carr
  The appellant appeals a custody order providing for joint custody with the children to live with each party during alternating weeks.  Low J.A. (for the court): The appellant father seeks an order for sole custody to himself with holiday, weekend, midweek and telephone access to the respondent mother. The father and mother disagree on whether the joint custody order is workable in light of their alleged communication difficulties. During the hearing of the appeal, the panel became interested in whether the order has served the best interests of the children. An update report under s.15 of the Family Relations Act was provided and written submissions on the report received from counsel.  Held: the appeal is dismissed. Both children are happy and well adjusted under the existing custodial and access regime and the communication problems between the parents are relatively minor. The order for joint custody has served and continues to serve the best interests of the children.
• 2001 BCCA 386    Lawrence v. Lawrence
  Appellant sued her parents alleging abuse and abandonment by parents when she was a child. Trial judge found one incident of assault occasioning bodily harm when appellant was a teenager proven to requisite standard but finding that balance of case not proven to requisite standard - Faryna v. Chorney, [1952] 2 D.L.R. 354 (B.C.C.A.) applied. Appellant arguing on appeal that judge erred in admitting evidence of expert psychiatric report, that judge erred in failing to clearly rule on admissibility of evidence of contemporaneous statements made by appellant to third parties and erred in failing to make clear findings of fact on the evidence. Respondents on cross-appeal arguing that damages awarded for assault excessive and that judge erred in failing to award costs to respondents on issues on which they succeeded - trial judge had denied costs on basis that respondents had advanced inconsistent versions of events before and during trial.
• 2001 BCCA 382    Vail v. Vail
• 2001 BCCA 380    Bindley v. Muliner
  Family law – husband obtaining share options during common law relationship of 4 years at end of which parties married – marriage breakdown 8 1/2 months later. Some proceeds from sale of option shares used by husband during 4 year pre-marriage period which trial judge said would have been used for a family purpose if married. No contribution by wife at any time. Share options held not used for a family purpose and thus not a family asset under  s. 58(2) of the Family Relations Act. Reapportionment of family assets so found 70-30 favouring husband.
• 2001 BCCA 355    Kordysz v. Kordysz
• 2001 BCCA 332    Underwood v. Underwood
• 2001 BCCA 317    Panattoni v. Panattoni  
• 2001 BCCA 291    Danchuk v. Danchuk
  The parties settled all property and support matters, including agreement that neither parent would pay child support to the other. The wife had custody of the two older children and the husband had custody of the younger child. A consent desk order confirming this arrangement was entered before the Federal Child Support Guidelines came into force. The appeal from an application by the husband to vary the order to require a payment to him under the Guidelines was allowed. Even on the basis that enactment of the Guidelines did not require a variation order to be made, in the circumstances of the case there was a material change in circumstances, and the agreement and consent order did not contain a special provision for the benefit of the child under s. 17(6.2) of the Divorce Act which would allow the court to award an amount different from the Guideline amount.
• 2001 BCCA 285    Cook v. Wade
  The courts determined that a five-year old child must be delivered to authorities in the State of Alaska upon proper application of the provisions of the Hague Convention or Civil Aspects of International Child Abduction.
• 2001 BCCA 284    Kits v. Kits
  Application to vary child support referred back to trial judge, as Sections 2(3), 16 and 17 of the child support guidelines had not been drawn to her attention.
• 2001 BCCA 276    Chan v. Chow
  Hague Convention on the Civil Aspects of International Child Abduction - Appeal dismissed. The Chambers judge erred in determining that the child was not "habitually resident" in Hong Kong immediately before her removal and was not "wrongfully removed" under the Convention. However, the child will not be returned to Hong Kong due to a "grave risk" that that will cause her harm, or would be otherwise intolerable. The Chambers judge was correct in ordering that a custody trial proceed in the Supreme Court.
• 2001 BCCA 250    McPhail v. McPhail
  Trial judge gave a divorce on cruelty when a one-year separation was available as a ground. While regrettable not reversible error. The cruelty finding did not affect the disposition of the other issues. No error demonstrated in the disposition of family assets or costs.
• 2001 BCCA 242    Sorensen v. Sorensen
  Family law – Children – Access   On an appeal by the father from a trial judgment on issues of primary residence and access. Held, there was no error in the terms of the order made by the trial judge that would allow the court to interfere with his decision.
• 2001 BCCA 224    Lindsey v. Lindsey
  Application to dismiss the appeal as abandoned for failure to comply with the Court of Appeal Act and Rules. Extensions of time were granted on two prior occasions. Held: Appeal dismissed pursuant to s. 10(2)(e) of the Court of Appeal Act.
• 2001 BCCA 211    Chan v. Chow
  Judgment Reserved. Ancillary interim order appointing child advocate, etc.
• 2001 BCCA 163    Xu v. Leung
  Appeal from determination and division of family assets, and from a decision that each party should bear his or her own costs of the trial. Apart from a recalculation because of tax considerations on an RRSP the appeal on family assets was dismissed. The appeal was allowed in part with respect to costs, to allow for the costs thrown away by failure of the wife to comply with court orders and rules.
• 2001 BCCA 148    Bell v. Bell
• 2001 BCCA 97     Wallace v. Jay
  Appeal with respect to what constitute family assets in this case and how they should be apportioned. Appeal also on spousal support. Cross appeal on same questions. Mathematical errors corrected. Otherwise, appeal and cross appeal dismissed.
• 2001 BCCA 84    Cheema v. Cheema
  The court dismissed an appeal from an order refusing to decide jurisdiction in a custody matter. A parallel proceeding is underway in India.
• 2001 BCCA 78      Thompson v. Floyd
  Family Relations: Unmarried spouses: parties lived together for about 11 years and then separated for health reasons, but continued to visit within one year of commencing action. Held, action brought in time. Female spouse entitled to half of the pension on trust basis and entitled to maintenance of $800 per month for five years from January 1998.
• 2001 BCCA 44    Muzzillo v. Muzzillo
  The appeal of a chambers decision reducing spousal support from $750 to $375 per month pending retirement of the payor spouse is dismissed.
• 2001 BCCA 35    Young v. Aubertin
  Application for order quashing Notice of Appeal on grounds that the appellant is in arrears of spousal and child support; that the appeal be dismissed as abandoned for failure to file appeal books and as lacking in merit; or alternatively an order for security for costs of the appeal and an order that arrears of child support be paid as a condition of the appeal proceeding.  Critical issue is whether the respondent is a "spouse". Recommendation made for order by consent allowing the appeal and remitting to the court below for trial the issue of whether the respondent is a "spouse". No order made as to security for costs. Time for filing appeal books extended for thirty days.
• 2001 BCCA 18 Motyka v. Motyka
  An order for child support from the date of divorce in 1994 was affirmed as authorized by s.17 of the Divorce Act, although the chambers judge erred in relying on the Federal Child Support Guidelines for that purpose. In reasons concurring in the result, the award was upheld as damages for breach of a separation agreement, incorporated into the divorce order.