B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

FAMILY 2003

• 2003 BCCA 4 Archibald v. Archibald
  Supplementary reasons on costs, varying an order that the parties bear their own costs to provide that the respondent will have the costs of the first appeal and the parties will bear their own costs of the second and third appeals.
• 2003 BCCA 12 Rotzetter v. Rotzetter
  Application for extension of time for filing transcripts where appellant is unrepresented. The overriding consideration must be the interests of justice. No merit in appeal. Application refused.
• 2003 BCCA 46 Gill-Sager v. Sager
  Appeal from judgment dismissing claim for spousal support allowed. As the matter was before the learned judge on the application of the respondent/defendant, the proper order would be "This Court orders that the motion of the defendant for an order that the plaintiff's claim for support be dismissed is refused."
• 2003 BCCA 94 Ebrahim v. Ebrahim
  The appeal for an order dismissing, under Rule 19(24)(b), the appellant’s action for malicious prosecution is dismissed, no legal error having been demonstrated.
• 2003 BCCA 99 T. v. T.
  Application to file amended notice of appeal granted.
• 2003 BCCA 130 R.E.P. v. M.P.
  The trial judge’s division of assets was varied on appeal only to the extent of dividing the family property equally. However, the Court expressed concern that a Registrar’s hearing, ordered by the trial judge to value the assets, had not been heard before the appeal. The Court suggested that the parties might not be able to return to the Court of Appeal with respect to any decisions made by the Registrar. The Court also expressed dismay over being asked to adjudicate upon the fairness of a division of assets when the monetary value of the trial award could not be calculated.
• 2003 BCCA 135 R. v. R.
  The trial judge, in spite of a joint custody and guardianship order, gave to Mr. R. the power to set the schedule of access. Held: This was the very reason the parties were before the Court and it was an error to delegate to one parent “control” of the situation. The matter was returned to the trial court for a rehearing as to the rights and responsibilities of the joint guardians and joint custodians.
• 2003 BCCA 172 C.C.H. v. T.J.H.
  Application for indigent status refused.
• 2003 BCCA 189 B.D. v. L.B.D.
  Chambers judge did not err in requiring "alternate security" pursuant to s. 26(10) of Family Maintenance Enforcement Act, R.S.B.C. 1996, c. 127, where payor had failed previously, for a few months, to pay child support due to his frustration in custody and access dispute, which dispute was still continuing.
• 2003 BCCA 191 E.M.O. v. W.R.O.
  Appeal from an order of the B.C. Supreme Court fixing child and spousal support and failing to re-apportion family assets. The appeal was allowed only to the extent of increasing child support because of an error in calculating the defendant’s Guideline income and correcting a miscalculation of asset division as conceded by the defendant. Calculation of the plaintiff’s Guideline income was also corrected although it made no difference to the amount of spousal support to be paid.
• 2003 BCCA 207 R. v. R.
  The husband's appeal from unequal division of assets after a lengthy marriage, and from the level of income imputed to him was allowed. The reasons for judgment did not reflect a full consideration of the criteria for reapportionment found in s. 65 of the Family Relations Act. This was not a case to move away from the general rule of equal division. On imputed income, the evidence did not support the conclusion that expenses deducted from income for tax purposes were unreasonable deductions under the Guidelines to the extent found by the trial judge. There was no basis to refuse an order of joint guardianship. The award of spousal support was reasonable in the circumstances.
• 2003 BCCA 249 J.R. v. S.R.
  Appeal from an order declaring family assets and reapportioning them to vest approximately 90% by value in the wife. Appeal allowed.
• 2003 BCCA 259 B.G.D. v. R.W.D.
  An agreement incorporated in a consent order that a wife be granted time-limited periodic and lump-sum maintenance and that upon payment being made her claim for spousal maintenance “is dismissed” does not engage the doctrines of res judicata and issue estoppel so as to deprive the court of jurisdiction to hear a subsequent application by the wife to vary the consent order. The court has jurisdiction in appropriate circumstances to vary an agreement or an order purporting to finally deal with spousal maintenance: Pelech v. Pelech, [1987] 1 S.C.R. 801, Miglin v. Miglin, 2003 SCC 24 applied; Gill-Sager v. Sager, [2003] B.C.J. No. 121 (B.C.C.A.) explained.
• 2003 BCCA 277 T.J.H. v. C.C.H
  This notice of appeal was filed after an application to file a notice of appeal, brought under a different case number, was dismissed. This appeal is declared abandoned under s. 28 of the Court of Appeal Act. An order is made under s. 29 of the Act requiring leave before this appellant commences other proceedings. The appellant is ordered to pay costs of the application forthwith. An application to fix his father with personal liability for the costs is dismissed.
• 2003 BCCA 285 P.M.J. v. A.D.J.
  Appeal by appellant father from order of a chambers judge dismissing application for production of records from the Director of Child Family and Community Service and the Police and ordering payment of extraordinary expenses pursuant to s. 7 of the Child Support Guidelines. Held: appeal dismissed. The chambers judge made no reviewable error.
• 2003 BCCA 292 K.J.W. v. M.D.W.W.
  Application dismissed to vary order made in Chambers dismissing appellant's application for indigent status.
• 2003 BCCA 295 K.K.C. v. A.P.C.
  The Court dismissed an appeal from a lump sum order of spousal support.
• 2003 BCCA 297 N.M. v. A.T.A.
  The Court dismissed an appeal by which the appellant sought to extend the doctrine of equitable estoppel to enforce a voluntary promise on which she relied to her detriment.
• 2003 BCCA 300 S.B.M. v. N.M.
  Appeal from unequal division of family assets allowed.
  Trial judge applied wrong test in finding 60/40 in favour of wife “fair” rather than deciding whether 50/50 unfair. 50/50 was not unfair and order varied accordingly.
  Cross –appeal dismissed. No error demonstrated regarding valuation of assets, particularly husband’s medical practice. Success divided, no legal error in trial judge’s refusal to award costs to either party.
• 2003 BCCA 304 M.M.R. v. Y.M.R.
  Court discharged the order of a justice, pursuant to s. 9(6) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, and granted an extension of time.
• 2003 BCCA 313 K.H.L. v. G.Q.L.
  Appeal from declaration that the parties' marriage was a nullity. The trial judge found that the appellant had demonstrated an invincible aversion to consummating the marriage. Held: appeal dismissed. There was ample evidence from which the trial judge could draw the inference that the appellant had an incapacity due to an invincible aversion to sexual intimacy with the respondent.
• 2003 BCCA 335 M.M. v. L.M.
  Appeal from an order requiring continued payment of child support by the father. The Court allowed the appeal and referred the matter back to the trial court. The chambers judge failed to resolve factual issues that should have been resolved concerning the mother’s access to the child and the father’s income. The Court dismissed the cross-appeal on the issue of double costs based on an offer to settle leaving it to the judge hearing the matter anew to determine any remaining issues of costs.
• 2003 BCCA 345 C. v. F.
  Appellant’s application for an order removing her appeal from the inactive list and extending the time to file her factum dismissed. The appeal stood as abandoned under s. 25(5) of the Court of Appeal Act. The test for reinstatement of a dismissed appeal is more rigorous than the test for removing an appeal from the inactive list. In this case, the delay of more than 18 months was inordinate, the failure of the solicitor to take any steps to pursue the appeal is not a reasonable explanation for the delay, and the respondent was prejudiced as he took steps to carry out the order of the trial judge and was as a result without funds to make any payment that may be required if the appeal was successful. The appeal has little or no possibility of success. Balancing the interests of the parties, it is not in the interest of justice to grant the orders sought.
• 2003 BCCA 361 A.H. v. D.S.H.
  Application for an order dismissing Ms. H.'s appeal from a judgment of divorce on the basis of her failure to comply with the appeal provisions of the Divorce Act and the Court of Appeal Act. Held: Application granted and appeal dismissed. The appellant had failed to appeal within the requisite time limits and there was no provision for an extension of time in these circumstances.
• 2003 BCCA 365 R.W.R. v. M.J.R.
  Leave to appeal granted.
• 2003 BCCA 381 M.(B.L.) v. M.(G.T.)
  Huddart J.A. refused to extend time for filing the appeal book, finding the appeal from a custody and access order had no prospect of success.
• 2003 BCCA 382 F.(J.G.) v. B.(C.L.)
  Huddart J.A. refused leave to appeal an interim custody and access order made under the Family Relations Act, finding it had no prospect of success and that the parties’ resources would be more profitably spent in reaching a final decision about care arrangements for their daughter.
• 2003 BCCA 390 P.(N.A.) v. W.(D.M.)
  The Court dismisses an appeal from an award of spousal support.
• 2003 BCCA 410 K.J.W. v. M.D.W.
• 2003 BCCA 420 H.E.D.C. v. R.M.C.
  The appeal from a judgment reapportioning the husband’s military pension from the division set out in a separation agreement was dismissed. Although the trial judge failed to consider the 1995 amendments to the Family Relations Act which, as a default position, exclude the pre-marital portion of a pension from being divided, the wife had satisfied the onus of showing that, on a proper consideration of the factors in s.65, it would be unfair to exclude the pre-marital entitlement from the value of the pension.
• 2003 BCCA 425 G. v. P.
  Supreme Court judge erred in applying the test on appeal with respect to varying a custody order. Appeal allowed. Decision of Provincial Court judge reinstated.
• 2003 BCCA 437 Wiest v. Middlekamp
  Appeal dismissed from an order declaring that s. 120.1 of the Family Relations Act, R.S.B.C. 1996, c. 128, only operates prospectively. Section 120.1 permits unmarried “spouses” to make an agreement to which Parts 5 and 6 of the Family Relations Act will apply.
• 2003 BCCA 438 R.E.W. v. R.E.W.
  Application by father of two young children to extend the time for filing notice of appeal as well as appeal books and other documents. The order sought to be appealed authorizes the mother, who is the custodial parent, to move with the children to Ontario. The order was made and the move effected over a year ago. Application dismissed, primarily on the ground that the appeal would be bound to fail.
• 2003 BCCA 468 K.v. K.
  Court declined to dismiss as abandoned an appeal from a two-year old order of the court below. Appeal books had been filed and factum to be filed by August 15, 2003. Given the near-readiness of the appeal, dismiss would not be appropriate.
• 2003 BCCA 473 Yang v. Yang
  Appeal and cross-appeal from judgment granting divorce for first marriage and allocating property rights arising from bigamous marriage to second respondent in the court below. Construction of s. 56 of the Family Relations Act, R.S.B.C. 1996, c. 128, at issue.
  Appeal of second respondent allowed as to clause 4 of judgment (re assignment of portion of interest in Dunlop property to petitioner). Cross-appeal dismissed.
  Second respondent (appellant) to recover costs of appeal and cross-appeal from first respondent (husband) on scale 1.
• 2003 BCCA 478 S.E.J. v. G.P J
  Appeal adjourned and an order made directing that two appeals brought from orders made in the same action be heard at the same time.
• 2003 BCCA 484 H.L. v. M.H.L.
  Appeal from an order that the appellant pay his former wife spousal support in the amount of $2,000 per month, reviewable in three years. The order is a variation of a previous time-limited spousal maintenance order. The parties entered into a separation agreement providing for spousal support payments for a period of two years. The spousal support provisions of the separation agreement were incorporated into an order for divorce. By a subsequent variation order the spousal support payments were extended for a period of ten months. Following the expiry of the first extension the respondent wife applied to further extend the spousal support payments. Her application was allowed and the support payments were reinstated.
  Held: Appeal allowed. The parties entered into a final and binding agreement. The fact that the wife is unable to find employment is not sufficient reason to conclude that the agreement should not govern the parties’ post-divorce obligations towards each other. Further there was no evidence linking the wife’s inability to find work to something that occurred during the marriage. The wife’s lack of marketable skills was not related to or caused by the marriage
• 2003 BCCA 491 B.N.A. v. R.M.A.
  Application to dismiss appeal, the appellant not having filed appeal books as required by an order of a chambers judge. Order made on proof of proper delivery of motion and affidavit being filed.
• 2003 BCCA 502 D.K.N. v. M.J.O.
  Appeal from an order reapportioning the proceeds of the sale of the matrimonial home and providing for spousal support in favour of the wife in a traditional marriage notwithstanding a settlement agreement under which the family assets were equally divided and claims for spousal support were abandoned. Appeal dismissed. The equal division was in the circumstances unfair within the meaning of s. 65 of the Family Relations Act and, applying Miglin v. Miglin, 2003 SCC 24, 224 D.L.R. (4th) 193, the agreement was not substantially in compliance with the general objectives of the Divorce Act.
• 2003 BCCA 504 E.S.J.A. v. J.D.A.
  Appeal dismissed from a trial judgment apportioning a share of the husband's pension to the wife following 15 years of cohabitation and a 21 year separation. There was no triggering event prior to the present proceedings and no error in the trial judge's determination apart from an error in calculation by counsel which was corrected.
• 2003 BCCA 513 M.T.R. v. L.S.R.
  A brain damaged 28 year old applied in chambers for intervenor status in the custody and access proceedings in which the parties are his parents. The extent of his brain damage has not been determined by the Court nor has he ever been classified as mentally incompetent under any statute. The application was opposed on the basis that he is not competent to swear an affidavit and that the affidavit accepted by the trial judge was not admissible. Held: The matter of the admissibility of the affidavit is for the full appeal and in that the applicant had a direct interest in the outcome of the proceeding, intervenor status was granted.
• 2003 BCCA 520 E.J.P. v. E.A.K.
  Appeal from order limiting access. Appeal dismissed.
• 2003 BCCA 528 S.L.R. v. C.D.R.
  An appeal from an order awarding a retroactive increase in child support. Appeal allowed in part. The increase in child support should not be paid for 2000 and 2001 but rather should commence January 1, 2002.
• 2003 BCCA 603 B.M.B. v. C.L.B.
  Appeal from an order increasing access for two children, a boy and a girl, but limiting overnight access for both because of concern for the girl caused by the applicant father’s unusual sexual behaviour with adult family members. Appeal allowed and remitted back for a determination of access for each child considered independently.
• 2003 BCCA 628 Trudell v. Cisilino
  The defendant father appealed an order refusing to restrain the mother from moving with the couple’s child from Vancouver to a small coastal town for a period of two years. The father argued that the move would impair access between him and the child.
  The appeal was dismissed. There was evidence to support the judge’s findings and her conclusion that the move was in the child’s best interests, and of advantage to the family as a whole. It was open to the father to apply for increased access in the trial court.
• 2003 BCCA 642 Ross v. Ross
  Application to review an order granting intervenor status in a domestic dispute to an adult child with a mental disability, and an order refusing to exclude an affidavit sworn in the proceedings below. Held: Application refused. No error in principle shown. Granting intervenor status does not prejudge the issue of the son’s capacity which lies at the heart of the appeal.
• 2003 BCCA 659 Berry v. Hart
  The trial judge’s order that the appellant was not entitled to a variation of the level of child support under s. 9 of the Federal Child Support Guidelines was upheld. The question to be asked under s. 9 is whether the paying parent spends such a sizeable percentage of time with a child or children that, on any reasonable view of the evidence and considering the advantage that may accrue to a child in spending time with that parent, one can reasonably say that the 40 percent threshold is met. While this was a case of shared parenting under s. 9, given the respective income levels of the parents it was appropriate that no variation be made.
  Newbury J.A. Dissenting: While the 40% threshold may seem arbitrary and contrary to the stated goal of s. 16(10) of the Divorce Act, it does not permit the degree of discretion exercised by the majority in determining whether it has been crossed. Before s. 9 may be applied, it is necessary that the court find that a child spends “not less than” 40% of his or her time with the paying spouse. In determining this, it is not open to a court to rely on any factor other than the proportion of the child’s time spent with or in the care of each parent. Once the threshold is crossed, a reduction in the table amount is not necessarily appropriate in any given case. The table amount in the Guidelines does not represent the sum total of both parents’ financial responsibilities, and no single formula can capture the process of weighing the factors set out in s. 9. In this case, the chambers judge did not resolve the question of fact of whether Kate, in particular, spends “at least 40%” of her time with her father for the purposes of s. 9. However, it could be inferred from the evidence that Kate spent more than 40% of her time with her father. While the amount of child support payable by the father in respect of Kate should be reduced by 25% here, the court should in future consider adjourning the application and requiring better particulars where the affidavit materials are insufficient to permit the s. 9 analysis.
• 2003 BCCA 666 Cornelisson v. Cornelisson
  Mr. Cornelissen appealed from the quantum of a child support order, both retroactive and prospective, and from an order that he pay $1 per month spousal support. Held: Appeal allowed in part. The trial judge erred in relying solely on Mr. Cornelissen's 2001 income to determine his 2002 income in the circumstances. Given the fluctuating nature of Mr. Cornelissen's income, s. 17 of the Federal Child Support Guidelines should have been applied to estimate his income for 2002. Further, retroactive child support should have been based on Mr. Cornelissen's actual income, which was readily ascertainable on the evidence. Since the trial judge based his award of spousal support on the quantum of child support, and since there were outstanding applications in the Supreme Court relating to ongoing child and spousal support, the issue of spousal support was remitted to the Supreme Court.
• 2003 BCCA 672 Campbell v. Campbell
  In custody case, no palpable error in fact, or error in law had been shown on the part of trial judge.
• 2003 BCCA 675 Range v. Bremner
  Appeal from an order dismissing an application for a stay of proceedings in an action for arrears of spousal maintenance on the ground that the parties had, by the terms of separation agreement, agreed that the dispute would be submitted to arbitrators. Appeal dismissed. What was agreed would be submitted to arbitration was only the question of whether there was a change in circumstances that warranted a variation of spousal maintenance and what the variation should be.
• 2003 BCCA 680 Frigerio v. Cameron
  Appeal from an order dismissing an application for the sale of property under s. 96(1) of the Court Order Enforcement Act to realize arrears of child support and secure future support obligations. Appeal allowed. The property was in the circumstances required to be sold.
• 2003 BCCA 689 B.B. v. British Columbia (Director of Child, Family and Community Services)
  Supreme Court dismissed the appellant's appeal from a Provincial Court order giving the Director of Child, Family and Community Services continuing custody of the appellant's two children. The appellant seeks leave on the grounds that there is a legal issue relating to the somewhat inconsistent sections of the Act when an order for continuing custody is made under s. 49 after a consent order and without any finding of whether a child is in need of protection. Leave granted.
• 2003 BCCA 707 Bennett v. Bennett
  Trial judge in family case had failed to give sufficient weight to disadvantage suffered by wife due to marriage breakdown, and her need to become self-sufficient. This was a long marriage in which both parties had benefited substantially from gifts provided by husband's family and husband could support himself comfortably in future. Assets were reallocated 65% to wife.