B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

FAMILY 2002

• 2002 BCCA 702 Hanna v. Hanna
  Dismissal of an appeal dismissing an application for an order approving removal of a child from the jurisdiction.
• 2002 BCCA 696 Kang v. Kang et al
  The Court dismissed an appeal from a dismissal of a wife's claim for equitable claim to proceeds of an insurance policy on her husband's life, paid to his sister, the designated beneficiary. It also dismissed an action founded in negligence and breach of fiduciary duty against the insurance agent and the insurer.
• 2002 BCCA 695 De Fehr v. De Fehr
  The Court refused to vary an order by Donald, J.A. refusing indigency status and government funding of counsel or the transcripts. The appeal was from an order refusing to enforce access and varying an access order.
• 2002 BCCA 656 Galbierz v. Galbierz
• 2002 BCCA 643 Krahn v. Krahn
  Application by respondent for order dismissing appeal as abandoned or, alternatively, for security for costs.
  Application to dismiss refused; application for security for costs granted and security for costs fixed at $5,000.00
• 2002 BCCA 631 Kaler (Dhanda) v. Kaler
  Mr. Dhanda appealed from all aspects of a divorce order, including the granting of the divorce. Held: Appeal dismissed. There was evidence to justify all of the orders under appeal.
• 2002 BCCA 629 McMurchy (Ramsey) v. McMurchy
  Ms. Ramsay appealed from the decision of a chambers judge reducing spousal maintenance from $860 per month to $300 per month. Held: There was no material change of circumstances justifying a variation of spousal maintenance. Further, the failure of Mr. McMurchy to make full financial disclosure militated against a variation in his favour. Finally, the trial judge erred in finding that the test for variation was one of equalizing the former spouses’ income, rather than applying the test for variation set out in s. 17 of the Divorce Act.
• 2002 BCCA 593 Tjader v. Tjader
  Parties seeking advice jointly about separation agreement and how husband should draw up will to protect infant children. Law firm providing free consultation of less than an hour as a pro bono service to credit union members. Years later, wife going to work for law firm and wishing to be represented by lawyer in law firm. Solicitor deposing to no recollection of meeting or discussion. Leave to appeal refused from decision of chambers judge that application of husband to disqualify law firm should not be granted.
• 2002 BCCA 590 Vinderskov v. Vinderskov
  An order of the B.C.S.C. granted to a mother an order permitting the change of residence of two children of the marriage from B.C. to New Brunswick. A further order granted the father, who lived in B.C., specified access and allowed him to set-off the costs of exercising his access rights against an earlier order for payment to the mother of child support.
  The appeal was dismissed. The father was required to adduce evidence of expenses actually incurred, and if less than the amount of support payable, further directions from the Supreme Court might be sought.
  An appeal against the order giving the B.C.S.C. exclusive jurisdiction was allowed.
• 2002 BCCA 589 Primrose v. Hanlon
  The application to reinstate the appeal and the application for indigent status are dismissed.
• 2002 BCCA 587 Hartshorne v. Hartshorne
  The parties signed a marriage agreement on the day of their marriage. They separated after nine years of marriage. The trial judge found the agreement to be unfair and varied its terms under Part 5 of the Family Relations Act.
  The main issue on appeal is what effect, if any, a marriage agreement is to have on the division of family assets after separation when the division required by the agreement is found to be unfair under s. 56 of the Act.
  Appeal dismissed, Thackray J.A. dissenting.
• 2002 BCCA 580 Bennett v. Bennett
  A stay pending an appeal from a refusal of a stay in a matter under the Family Relations Act was refused because it would finesse the Supreme Court's exclusive jurisdiction under s. 14 of the Act. Leave to appeal was refused because the only point of the appeal was to provide the mechanism for a stay.
• 2002 BCCA 577 De Fehr v. De Fehr
  The order appealed from was interlocutory but because the underlying order of custody and access may have been issued under the Divorce Act rather than the Family Relations Act, s. 21 of the Divorce Act should be assumed to govern, and accordingly, the appeal is as of right and leave is not required. The appellant's indigent status is refused because he has demonstrated the capacity to fund a multiplicity of proceedings on his income from employment; and because the appeal would serve no practical purpose. The appellant's applications for state funded legal assistance are an abuse of process. This Court has already decided he is not entitled to the relief sought in an earlier appeal.
• 2002 BCCA 568 M.M.E. (Guardian Ad Litem) v. L.M.J.
  Appeal from a jury verdict dismissing the appellants' claims as a "spouse" and "child" of a "stepparent" under the Family Compensation Act, R.S.B.C. 1996, c. 126. The appellants argued that the trial judge did not adequately explain the legal interpretations of these definitions in the Act. Held: appeal dismissed. The trial judge distributed the definitions in writing to the jury and discussed them in the context of counsel's submissions on the evidence. That provided the jury with sufficient meaning for them to have reasonably come to the conclusions that they did.
• 2002 BCCA 567 Dimambro v. Dimambro
  The Court upheld a reapportionment of family assets by a trial judge in the exercise of her discretion under s. 65 of the Family Relations Act.
• 2002 BCCA 546 Boehm v. Boehm
• 2002 BCCA 539 Holden v. Holden
  Application for extension of time to appeal a judgment two years old entered two years ago in divorce proceedings dismissed.
• 2002 BCCA 537 Rozen v. Rozen
• 2002 BCCA 508 Graves v. Graves
• 2002 BCCA 504 Newton v. Newton
  Leave to appeal granted in case alleging negligent supervision by parent in case involving adult injured by collision with child on stairs in home of mother and father of child.
• 2002 BCCA 498 Macdonald v. Macdonald
  Supplementary reasons as to costs.
• 2002 BCCA 485 Hannigan v. Hannigan
  Counsel applied for directions as to whether an order settling one issue between the parties, but leaving other issues outstanding was final or interlocutory. Held: The order was interlocutory and required leave to appeal.
• 2002 BCCA 482 Poustie v. Kaemmer
  Appeal from judgment dismissing appeal from order regarding custody of an infant child, granting application to move to the United States, and for access and telephone contact. Issue of whether trial judge should disqualify herself from proceeding with the trial as she had conducted a case conference with respect to the same proceedings. Insufficient material provided to address the argument made by counsel; this is not an appropriate case to come to any decided opinion and the issue raised here is of such consequence that the Attorney General of British Columbia ought to have been given an opportunity to intervene. Appeal dismissed.
• 2002 BCCA 477 Archibald v. Archibald
  The mother brought three appeals from orders concerning the custody, residence and access of two daughters of the marriage. The first appeal is from interim orders made following a three-and-a-half week trial. The second appeal is from further orders concerning access and communications. The third appeal is from final orders confirming the interim orders made following the trial. The mother raised both substantive and procedural issues on the appeals. Held: Appeals dismissed. On the substantive grounds, the trial judge did not err in his consideration of the evidence or the application of the legal principles. Matters of weight are for the trial judge and are not reviewable on appeal. On the procedural grounds, the trial judge made no legal error in not making final orders following the trial, although the procedural difficulties created could have been prevented by clear reasons for making interim orders. Nor were there errors in the subsequent orders. It would be reasonable to to treat the final orders as having been based on the evidence adduced at trial and to determine any fresh application to vary on evidence of events that have transpired since then.
• 2002 BCCA 454    Fotheringham v. Fotheringham
  Application for leave to appeal order for costs assessed under Rule 57(9) where plaintiff had sought an order for costs and double costs from the date of an offer to settle.  The important issue of whether, in considering whether there has been substantial success within the principle of Gold v. Gold, for the purpose of determining the appropriate order under Rule 57(9), the court ought to compare the result with an offer to settle which has been made, is not conclusive and here the amount in issue is not sufficient to warrant giving leave.  Application for leave refused.

• 2002 BCCA 433    Whyte v. Whyte
  The trial judge cancelled all arrears of spousal maintenance and cancelled an earlier order providing for spousal maintenance by the husband.  HELD: The order cancelling the spousal maintenance obligations was upheld on the basis that the marriage had not economically disadvantaged the wife and as well she was self-sufficient.  The majority upheld the order cancelling arrears in that they never would have occurred but for the false statement by the wife as to her income.  Thackray J.A. would have reduced the arrears but not cancelled them in that the husband should not have taken it upon himself to ignore the court order for payment of spousal support.

• 2002 BCCA 428    Frydrysek v. Frydrysek
  Appeal from orders made under Part 5 of the Family Relations Act with respect to the reapportionment of the former matrimonial home.  The respondent wife was given a “one-third equity” in the home.  The order stipulated an amount at which the appellant husband could purchase the wife’s interest and provided that in the event he did not do so, the property was to be listed for sale and the wife was to receive one-third of the net proceeds of sale.  The appellant husband argued that the trial judge erred in applying the factors in s. 65 of the Act when reapportioning the parties’ interests in the home. Appeal dismissed with order in the trial court to be amended to reflect that the respondent has an undivided one-third interest as a tenant in common in the property rather than “one-third of the equity”.  Should the appellant wish to purchase the respondent’s one-third interest in the property, application must be made in the trial court.  In that event, the proper date for determining the value of the home would be the date the respondent’s interest is being purchased.

• 2002 BCCA 409    Scheiber v. Phyall
  This was an appeal by the mother of a 6 1/2 year-old child from the refusal of a chambers judge to permit her to vary a joint custody and access order to move with the child from Powell River to Mill Bay, British Columbia where her present husband had found work.  A similar application made by the mother 6 months earlier to move with the child to New Zealand had also been dismissed.  The chambers judge determined that the child's best interests would be served by permitting the child to continue to live in Powell River with the father and by transferring the child's primary residence to that of the father.  Held:  Appeal dismissed.  The standard of review is that set out in Van de Perre v. Edwards, [2001 2 S.C.R. 1014.  Here the trial judge had considered all of the evidence and applied the principles set out in the leading case of Gordon v. Goertz, [1996] 2 S.C.R. 27. It was not established that she had erred in law or made a material error in her appreciation of the facts.  There was no basis for interfering with her decision.  

• 2002 BCCA 406    Johnstone v. Wright
  The issue in this appeal is whether s. 120.1 of the Family Relations Act is retrospective in its application so that it applies to agreements made before November 4, 1998. Section 120.1, which came into effect on that date, effectively treats marriage agreements between unmarried spouses like marriage agreements which may be reviewed for fairness under s. 65 of the Act. Held by a majority, Lambert J.A. dissenting: The language of s. 120.1, read together with s. 61(1) of the Act, which defines marriage agreements for the purposes of Part 5 of the Act and applies that definition to marriage agreements made before or after March 31, 1979, expressly gives retrospective effect to s. 120.1. Retrospective interpretation is consistent with family law legislation and judicial decisions over the last twenty-five years.  

• 2002 BCCA 398    Stubban v. Stubban 
  The appellant appealed the appointment of the Public Trustee as his mother’s committee.  The appellant applied to be appointed committee of his mother, but when his siblings objected to his appointment, the chambers judge appointed the Public Trustee.  Held:  Appeal dismissed.  There is no basis for this Court to find that the chambers judge wrongly exercised his discretion in appointing the Public Trustee.

• 2002 BCCA 394    Brandner v. Brandner
  The appellant appealed an order under s. 88 of the Family Relations Act, R.S.B.C. 1996, c. 128, requiring him to pay support for his 20-year-old child who was attending college.  The issue was the sufficiency of the evidence establishing that the boy was "a child of the marriage" under Part 7 of the Act.  The court dismissed the appeal but amended the trial order to provide for on-going disclosure of the boy's expenses and progress at school.

• 2002 BCCA 393    De Fehr v. De Fehr
  Application in a case of child custody set aside the order of a chambers judge, who had been the case management judge throughout the proceedings in this Court, refusing to further extend the time for filing the factum and dismissing the appeal for want of prosecution.  No tenable ground being shown to interfere with that order, and it being clear that the continuation of litigation is adverse to the interests of the four children, the application was dismissed.

• 2002 BCCA 366    Larose v. Larose
  Appeal by custodial parent from order refusing to allow him to move with children from West Vancouver to Nanaimo.  Appeal allowed.  Trial judge had erroneously applied minority judgment in Gordon v. Goertz, [1996] 2 S.C.R. 27 and had misplaced onus.  On a correct application of Gordon v. Goertz, parent's decision should be respected in circumstances of this case.  

• 2002 BCCA 345    Barker v. Barker
  Appeal from judgment in family law proceeding making an unequal division of the matrimonial home and postponing its sale, refusing to order occupational rent, finding that corporate income tax debts, legal fees and personal tax debts were "family debts", determining husband's Guideline income for purpose of child support and determining award of costs.   Southin J.A. (Ryan J.A. dissenting):  Order dividing equity in matrimonial home 70/30 in favour of the wife set aside.  Trial judge erred in taking into account matters that occurred after the triggering event in determining whether an equal division of the matrimonial home would be unfair.  The Family Relations Act contemplates an equal division of family assets unless good reason as of the triggering event requires some other division.  Nothing in this case brings s. 65 into play.  The term of the order giving exclusive occupancy of the matrimonial home to the wife is set aside - half-interest should be bought out or home sold.  Amount of additional renovations reduced by amount paid before the triggering event. Ryan J.A., for the Court:  Order that husband be responsible for corporate income taxes and legal fees of Lorraine Barker Ltd. is set aside with husband remaining responsible for one-half of the personal tax liability and legal fees incurred for the family trust.Order establishing husband's income for Guideline purposes set aside and lesser amount substituted with order for child maintenance to be adjusted accordingly. 
• 2002 BCCA 338    Hilton v. Hilton
  Mr. Hilton appealed from the decision of a trial judge denying him spousal support and reapportioning the matrimonial home and an RRSP substantially in favour of Ms. Hilton. Mr. Hilton submitted that the trial judge had erred in finding that Mr. Hilton was not entitled to spousal support, in his treatment of some of the family debts, and in his reapportionment of the matrimonial home and the RRSP.  Held:  Appeal from the refusal to award spousal support dismissed.  Appeal from the treatment of family debts and the reapportionment of the matrimonial home and RRSP allowed in part.  

• 2002 BCCA 328    Mills v. Mills
  Since chambers judge had not made a key factual finding, this family dispute, which involved credibility issues, was remitted to the British Columbia Supreme Court for rehearing.

• 2002 BCCA 317    Laurie v. Laurie  
  Family law – extraordinary expenses for two children engaged in figure skating at national level – expenses for both said to be a total of approximately $2,000 per month for ice rental, club fees, coaching and attending competitions – father paying $1,200 per month by court order for child support for both – father’s income approximately $79,000, mother’s approximately $64,000 – trial judge ordering $1,021 for child support and $779 per month for extraordinary expenses – appeal dismissed.
• 2002 BCCA 308    De Fehr v. De Fehr
  Appeal dismissed for failure to file a factum within the time provided by order of the chambers judge, against a background of significant delays in filing transcripts and appeal books.  The best interests of the children would be satisfied by dismissing the appeal.  
• 2002 BCCA 300    Suckau v. Suckau   
  The trial judge erred in not finding that the respondent’s family asset claim was brought out of time under Part 5 of the Family Relations Act.  The compensation order made by the trial judge rested entirely on the Act so the case was remitted back to the trial judge to consider the claim on the alternative pleadings of unjust enrichment and trust.  The trial judge must also address a consent issue on the counterclaim to the taking by the respondent of certain chattels.
• 2002 BCCA 299    Parker v. Parker
  The Court dismissed an appeal from an order dismissing a father's application for increased contact with his six year old daughter.  The Court agreed there was insufficient evidence before the chambers judge to permit an inquiry as to the maximum contact consistent with the child's best interest
• 2002 BCCA 275    Egan v. Egan
  The principal issue on appeal was whether Mr. Egan was entitled to the benefit of a deduction from income for capital cost allowance (CCA) on personal property used by him in his engineering business. There was evidence that the CCA related to depreciation on his motor vehicle and on other unspecified business assets. The trial judge held that Mr. Egan was bound by a prior consent order which set his income under the Federal Child Support Guidelines as $54,000 without giving him the benefit of depreciation for CCA. Held: Appeal allowed. The consent order contemplated that either party would be able to apply to vary the child support order once Mr. Egan provided full financial disclosure which was not available at the time the consent order was entered into. Section 19(1)(g) of the Guidelines allows the court to impute income to a spouse if the spouse unreasonably deducts expenses from income. Section 11 of Schedule III of the Guidelines requires that allowable CCA "with respect to real property" must be imputed back into income for Guidelines purposes, but is silent with respect to CCA on personal property. That does not mean that allowable CCA on personal property may always be deducted from income, but permits the court to review contested claims for CCA on personal property to determine whether they are unreasonable within the meaning of s. 19(1)(g) of the Guidelines. There should be evidence led which enables the court to make this determination. In this case, the CCA claimed with respect to the motor vehicle was allowed, but the claim with respect to the other property was dismissed as there was no evidence with respect to the assets on which it was claimed. The child support order was adjusted to take into account the deduction from Mr. Egan's income relating to the CCA for the motor vehicle.
• 2002 BCCA 265    Spencer v. Spencer 
  The trial judge's order of only two more years of spousal support in favour of 45-year-old wife was upheld.  The order was one of a range of orders that could have been made, and absent an error being shown, the Court of Appeal could not interfere.
• 2002 BCCA 253    Rohani v. Rohani
  Appeal of orders made in two actions in which the effect of a marriage agreement executed by the husband and wife during their marriage was in issue.  An order made against a company securing payment of a compensation order set aside because all of the shareholders whose interest might be affected by the order had not been given notice that such an order would be sought.  Appeal of other orders dismissed.
• 2002 BCCA 232    Cook v. Cook
  This appeal concerns the interaction between an order made under the Family Relations Act and the terms of a registered retirement savings plan established as part of a benefit package earned through employment.  The husband, through his employer, has two RRSP accounts, the Employee Basic Account and the Employer Basic Account.  As part of a settlement of the division of their assets, the parties agreed by consent order to equalize their RRSPs.  Equalization required the husband to transfer a portion of the Employer Basic Account, but his employer took the position that the terms of the account do not allow him to withdraw funds unless he resigns or retires.  His wife applied to the B.C.S.C. for an order compelling the transfer to her of a portion of her husband’s Employer Basic Account.  The chambers judge dismissed her application, concluding that the language of the program did not allow the husband to take funds from the plan unless he retired or resigned, not withstanding that his interest had vested.  Absent legislation to the contrary, the wife was not entitled to a greater interest than that of her husband. 
• 2002 BCCA 215    Hill v. Hill
  Mr. Hill appealed from an order varying a child maintenance order on the grounds that the Chambers judge erred in her assessment of the evidence and in awarding lump sum costs against him.  Appeal dismissed.  The Chambers judge made no reviewable error in her assessment of the conflicting evidence and her judgment was supportable on the evidence that she accepted.  The order for lump sum costs was consented to by counsel below for both parties and there is, therefore, no ground for interfering.  
• 2002 BCCA 210    Archibald v. Archibald 
• 2002 BCCA 207    Dhaliwal v. Beloud
  Appeal allowed from dismissal of application for variation of access order.  The order had failed to bring about intended phase-in of access and was now essentially spent.  The resulting three years of 'telephone access' only could not have been foreseen by the judge who originally made the Order.  Access terms varied.  

• 2002 BCCA 182    Llewellyn v. Llewellyn
  The Court varied an enforcement order to take account of changes in circumstances between the making of a consent order for child support and the date of hearing. It also made a minor variation to the prospective child support order to accord with the evidence of the payor father's income under the Child Support Guidelines. It dismissed the father's application to vary the child support on the grounds of undue hardship allegedly arising from the costs of exercising access to three teen-age sons who had moved with their mother and step-father from Kamloops to Sylvan Lake, Alberta.

• 2002 BCCA 161    Andrusiek v. Andrusiek (Schatz)
  The appellant raised a number of procedural difficulties encountered in the hearing of an application to vary the custody of a 10-year-old child.  The appellant also asserted that the hearing judge was wrong to find a material change in circumstances.  The appeal was dismissed.

• 2002 BCCA 155    T.M.F. v. M.H.
  The court concluded that the trial judge had not erred in determining the "best interests of the child" in a custody and access trial.   

• 2002 BCCA 151    Berry v. Berry
  Spousal support.  Appeal allowed on the basis that the rules for disclosure of income and property had not been complied with.  The Elensky principle that an appeal will not be heard if the appellant is in arrears was not applied after the arrears were brought up to date.

• 2002 BCCA 139    DeFehr v. DeFehr
  The appellant applied for review of an order of a chambers judge dismissing his application for funding for counsel to assist in his appeal and for the cost of transcripts. The appeal is from orders for custody and access of the four children of the appellant and respondent made following a trial in Supreme Court. Held:  application dismissed. The chambers judge did not err in dismissing the appellant’s application. The appellant could not establish that he had any constitutional right to funding for his appeal and there was no merit to his application for funding for the cost of transcripts.  

• 2002 BCCA 129    Berry v. Berry
  Appeal adjourned.

• 2002 BCCA 85    Neufeld v. Neufeld
  Leave to appeal an order for child support made under the Child Support Guidelines and the Family Relations Act, granted.  

• 2002 BCCA 55    D.B. v. Director of Child, Family and Community Service
  The appellant contends that the failure of her counsel to provide effective representation at the continuing custody hearing requires, as a matter of law, that the custody order in favour of the Director be quashed and a new hearing be conducted.  Her appeal to the Supreme Court of British Columbia, on the same basis, was dismissed.  The appeal judge concluded that the appellant had not received effective representation at the hearing, principally in two respects, her counsel had failed to adequately interview witnesses or prepare them to give effective testimony and had discouraged the appellant from testifying.  However, the appeal judge concluded that a new hearing was not necessary, as even if the appellant’s evidence had been believed, it was reasonably probable, considering other evidence, that the outcome would have been the same.   Held:  Per Saunders J.A.: Appeal allowed and matter remitted to the Provincial Court for a new hearing.  The failure of the appellant’s counsel to provide effective representation was not state action as described in s. 32 of the Charter and therefore her security interest under s. 7 of the Charter was not infringed.  However, the comments of Lamer C.J. in New Brunswick (Ministry of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 concerning the value of a fair hearing in the context of a child apprehension case and the importance of the parent-child relationship are relevant.  This Court, in reviewing the order, may interfere with the decision appealed where there has been such error in the course of the hearing, even by counsel, that there is a real question whether the order is in the best interests of the child.  Where an order is sought to be set aside on the basis of counsel’s representation of a party, the standard familiar to the courts for admission of fresh evidence is appropriate (G.D.B. v. The Queen, [2000] 1 S.C.R. 520; R. v. Garofoli (1988), 41 C.C.C. (3d) 97; R. v. Deneault (1993), 33 B.C.A.C. 156).  As the appellant did not receive effective representation by her counsel, the question is whether a new hearing is required.  On the prejudice component of the test set out in G.D.B., one cannot say with any degree of certainty that the appellant's evidence, if believed, would have had no reasonable prospect of affecting the outcome.  That is, there was a reasonable probability that but for the deficiency of representation, the result would have been different.   Per Rowles J.A.:  The appeal judge erred in not considering the lack of fairness in the adjudicative process, taking into account trial counsel's having told the appellant that if she testified, he would make a statement to the trial judge dissociating himself from her decision to give evidence.   Per Ryan J.A.:  On either test, the hearing was unfair to the appellant and, ultimately, unfair to the children.  A new hearing must be ordered.

• 2002 BCCA 53    Xu v. Leung
  Appeal Allowed. The original order referred to a future application to vary, not to apply for a review. Thus the applicant was required to establish a change as described in s. 17(4.1) of the Divorce Act. There having been no such change, the application for variation ought to have been dismissed.

• 2002 BCCA 46    Macdonald v. Macdonald
  Guideline amounts for child maintenance found to be appropriate at $59,500 a month by a Master were correctly determined as inappropriate by a chambers judge on appeal and fixed at $20,000 a month.  The decision to depart from the Guideline amounts was upheld but no opinion expressed on the quantum.  The applicable principles in high income situations discussed.
• 2002 BCCA 39    Jomaa v. Hamad
  A chambers judge erred in rejecting the appellant's statement of earnings.  The error affected the refusal to cancel or vary arrears.  Case remitted for determination of what, if any, relief should be granted.
• 2002 BCCA 34    Vaandering v. Vaandering
  A Chambers judge erred in principle in cancelling arrears of spousal support.  The court set aside the order and reinstated the arrears.