B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

FAMILY 2004

• 2004 BCCA 29 Jensen v. Jensen
  Dismissal of an appeal from an order fixing spousal maintenance on a temporary basis. Appeal allowed from a later order reducing spousal support from $1,000 to $800 per month but only to the extent of making the order subject to review without the necessity to prove a material change in circumstances. Otherwise, appeal dismissed.
• 2004 BCCA 58 Brandner v. Brandner
• 2004 BCCA 62 B.M.B. v. C.L.B.
  Supplementary reasons on costs.
• 2004 BCCA 73 Cenciarini v. Cenciarini
• 2004 BCCA 82 Cenciarini v. Cenciarini
  The Court dismissed an appeal from an order enforcing an earlier order of a Supreme Court Judge determining and dividing family assets.
• 2004 BCCA 99 Stones v. Stones
  Unemployment by a professional chartered surveyor who ran his own business until it failed is a material change of circumstances in the case. The facts are not sufficiently established to change the trial judge’s order with respect to interest on arrears of spousal support. Appeal dismissed.
• 2004 BCCA 101 Tedham v. Tedham
  Supplementary reasons on costs
• 2004 BCCA 105 Sarkodee-Adoo v. Sarkodee-Adoo
  Appeal from an order distributing family assets 75/25 in favour of the wife and ordering the husband to pay special costs dismissed.
• 2004 BCCA 124 Bystedt (Guardian ad litem of) v. Hay
  In a medical malpractice case, the appellant doctor appealed the decision of the trial judge finding him liable in damages to the infant plaintiff for his failure to provide appropriate medical treatment when he diagnosed her with the Herpes Simplex Virus 2 shortly after her birth. The central issue at trial was one of causation. The appeal was advanced not on the ground of error in law but of fact. The appellant argued that the trial judge misunderstood the theory of the defence, failed to appreciate the significance of certain evidence and misunderstood evidence material to the defence.
  Appeal dismissed, no palpable and overriding error having been shown: Rowles J.A., Levine J.A. concurring; Thackray J.A. dissenting.
  The cross-appeal brought in relation to the non-pecuniary damage award and the “in trust” claim was dismissed, no error in principle or in fact having been shown.
• 2004 BCCA 125 Telatar v. Telatar
• 2004 BCCA 128 Castellan v. Muncey (Estate)
  On a summary trial under Rule 18A, the trial judge was required to make rulings on reliability for the purposes of the principled approach to the hearsay rule. He could not do so properly except on via voice evidence. Appeal allowed and new trial ordered.
• 2004 BCCA 131 Ross v. Ross
  On appeal, the appeal was allowed and orders were made under the Divorce Act and the rules with respect to the trial of issues relating to custody, access and maintenance of an adult “child of the marriage”.
• 2004 BCCA 138 Krahn v. Krahn
  Directions given
• 2004 BCCA 145 Rohani v. Rohani
  Orders directing third parties to post security for payment of a compensation order in matrimonial proceedings are final orders as between the plaintiff and those parties and leave to appeal is not required.
• 2004 BCCA 146 Boyd v. Harris
  An appeal from jury awards for non-pecuniary damages and damages for impaired earning capacity on the ground that the awards were excessive was dismissed.
• 2004 BCCA 244 L.S and S.S. v. British Columbia (Ministry of Children and Family Development)
  Appeal from judgment dismissing a petition for judicial review consequent upon an application by respondent below purportedly pursuant to Rule 34 for an order that the appellants had no status to attack a decision of the respondent concerning a foster child. The application was misconceived and ought not to have been entertained. Pursuant to Rule 52, pleadings and a trial were ordered. The respondents were not precluded from seeking a trial under Rule 18A.
• 2004 BCCA 297 Evetts v. Evetts
  Mr. Evetts appealed on the basis that a chambers judge erred in failing to further reduce his child support payments pursuant to s. 9 of the Guidelines (shared custody) and in failing to find that hockey expenses were extraordinary expenses under s. 7 of the Guidelines. Held: Appeal dismissed. The decision of the chambers judge with respect to child support was justified under both ss. 9 and 7 of the Guidelines.
• 2004 BCCA 302 Hilton v. Hilton
  Mr. Hilton applied for an order seeking payment to him of monies held in trust arising from the sale of the former matrimonial home pursuant to an order of this Court made in May 2002. Ms. Hilton applied for an order for an accounting with respect to those funds based on matters which had not been raised either before the trial judge or before this Court on appeal. Held: Mr. Hilton's application was granted. Ms. Hilton's application was dismissed. The parties should have applied to clarify and settle this Court's order prior to entry. There was no justification for the parties waiting two years before returning to Court to sort out the differences between them. This Court could not, and would not, engage in an accounting 8 1/2 years after the triggering event, 3 1/2 years after the trial and two years after the appeal.
• 2004 BCCA 304 Bennett v. Bennett
  Supplementary reasons of the court.
• 2004 BCCA 307 Stonier v. Stonier
  Appeal from an order made in matrimonial proceedings on a summary trial application on the ground that the trial judge, in granting a final order in the same terms as an interim consent order made eight months earlier, failed to consider the best interests of the child. The trial judge's decision was well supported by the material before him. Appeal dismissed.
• 2004 BCCA 327 Luedke v. Luedke
  Husband and wife had entered into an agreement providing for sharing of custody and expenses related to children. Later the husband sued for divorce and in these proceedings the wife sought an adjustment in maintenance payable for the children pursuant to the Guidelines. Judge acceded to this request and made order on set-off basis. However, judge also incorporated as paragraphs of order provisions from agreement requiring husband to pay expenses of recreation activities and requiring wife to pay for clothing. Former category considerably more expensive than latter. Husband was larger income earner and both parties had entered into new relationships with partners who earned income. Judge fixed incomes of both parties for Guidelines purposes.
• 2004 BCCA 329 Querfurth v. Querfurth
  Supplementary reasons on form of order.
• 2004 BCCA 385 C.H. v. British Columbia
  Appeal from a judgment in which the Ministry of Social Services was found liable in negligence for damages resulting from the sexual and physical abuse of the plaintiff.
  Appeal dismissed, no error in principle having been found.
• 2004 BCCA 399 Thiessen v. Thiessen
  Application for indigent status dismissed on the ground that the appeal has no merit.
• 2004 BCCA 404 K.M. v. Director of Child Family and Community Services
  Leave to appeal refused.
• 2004 BCCA 409 A.J.C. v. R.C.
  Leave to appeal refused in on-going matrimonial litigation.
• 2004 BCCA 412 Telatar v. Telatar
  No reason was shown why the substantially successful respondent should be denied costs of the appeal.
• 2004 BCCA 422 Leskun v. Leskun
  Appeal from order refusing to vary order for spousal support.
  Appeal dismissed. Section 15(6) in the circumstances was not an answer to the wife's need for maintenance.
• 2004 BCCA 443 Smith v. Lau
  A common-law couple entered into an agreement upon separation, dealing with custody of and access to their child, child-support, and various property issues. The agreement was said to be “subject to review by the Mother’s legal counsel, and by a tax lawyer for the Father.” The appellant/father left Canada for the U.K. where he found that payments to be made by him for child support would not be deductible for tax purposes. He advised the respondent/mother that he could therefore afford to pay only a lesser amount, and proceeded to do so for some time. The respondent/mother accepted this state of affairs.
  However, the respondent/mother breached many of the terms contained in the agreement regarding the parties’ properties, failed to disclose various facts regarding the properties, misused funds sent to her for specific purposes by the appellant/father, and generally thwarted his attempts to exercise access to the child when he flew to Canada for that purpose.
  The court below held that the agreement had not been subject to a condition precedent regarding the deductibility of the appellant/father’s payments and that accordingly, the agreement was valid and binding. The judge below also rejected the argument that the respondent/mother had fundamentally breached the agreement, amounting to repudiation thereof.
  On appeal, the majority agreed that the agreement had not been subject to a condition precedent, but held that the respondent/mother’s conduct was so extreme as to amount to a repudiation of the agreement, which repudiation had been accepted by the appellant/father. Accordingly, the agreement was declared to be no longer in force and the various matters raised in the parties’ respective pleadings were remitted back to the trial court for trial.
  Levine J.A., dissenting, was of the view that the respondent/mother’s “misperformance” of her obligations did not amount to a fundamental breach.
• 2004 BCCA 467 Hodgkinson v. Hodgkinson
  Parties obtained a consent order that time should not start to run against appellant for required filings until trial judge gives reasons on application to re-open. Trial judge dismissed application to re-open with reasons to follow. Reasons not yet handed down. Application to dismiss appeals as abandoned on basis that time should run from pronouncement of trial judge’s order or, alternatively, to dispense with factums, appeal record, and appeal books dismissed.
• 2004 BCCA 469 Wright v. Wright
  Leave to appeal refused from an order for costs amended by trial judge under the slip rule after order entered. No error of principle demonstrated.
• 2004 BCCA 492 Ambler v. Ambler
  On appeal from an order granting spousal maintenance and varying a consent order limiting the term of spousal maintenance, on application after expiry of the term: HELD appeal dismissed.
  There was evidence from which the chambers judge could conclude that there was a change in circumstances related to the marriage that was not condoned by the consent order. Miglin v. Miglin [2003] 1.S.C.R. 303 applied.
• 2004 BCCA 495 Grymes v. Gaudreault
  Application for a stay of an order returning children removed from Texas contrary to Hague Convention on the Civil Aspects of International Child Abduction. Applicant mother alleged return would place children at "grave risk".
  Held: Stay refused. Applicant has a weak case on appeal although not bound to fail. Chambers judge found she was relitigating her divorce, recently concluded in Texas, in showing grave risk and she removed children to start a new relationship here rather than to protect the children.
  Merit test for a stay should not be made more stringent because of the urgency of Convention applications. Assuming a serious question, the strength or weakness of the appeal can be weighed in determining the balance of convenience. Ordinarily the court can hear these matters quickly but in the present case, the appeal could not be heard before the children start their school year and their schooling should not be disrupted.
• 2004 BCCA 509 A.J.C. v. R.C.
  Supplementary Reasons — special costs denied.
• 2004 BCCA 538 Dhillon v. Dhillon
  The plaintiff in a fraud action sought production of documents subject to solicitor-client privilege. The chambers judge dismissed the application and the plaintiff sought leave to appeal. The point raised is neither significant to the practice nor prima facie meritorious. Application dismissed.
• 2004 BCCA 551 Steinebach v. Strobel
  The Court dismissed an application by the mother to vary an order granting custody to the father. The mother cannot argue that the “re-establishment of the child’s relationship with the father” is a material change in circumstances, since this was the intent of the judge’s original order.
• 2004 BCCA 576 Sidhu v. Dhillon
  The trial judge granted a declaratory order that the respondent had a one-half interest in property that had formerly been registered in the joint names of the parties, based on a resulting, or alternatively, a constructive trust. The appeal raises no issues of law but was advanced on the ground that errors had been made in the trial judge's findings of fact. To support her argument, the appellant, who appeared on her own behalf, asked this Court to refer to material and documents not before the trial court. The appeal was dismissed; no palpable error was made.
• 2004 BCCA 577 Williams v. Unrau Williams
  Husband's appeal dismissed. Husband failed to prove assertion that family home was a gift from his father-in-law. Trial judge did not err in dismissing husband's claim to share in the home as a family asset and in holding that the home was the property of the father-in-law. Trial judge did not err in failing to order father-in-law to produce documents during the trial to the extent requested by the husband. Was within the trial judge's discretion to limit production as he did. The trial judge's interventions were for the purposes of clarifying the evidence and of assisting the unrepresented litigants to present their cases. They did not result in an unfair trial. The award of spousal support was supported by the evidence and deference was given to the trial judge's findings. The wife's cross appeal was also dismissed. The evidence upon which she relied for her assertion that income should have been imputed to the husband for the purposes of child support was considered by the trial judge. No error shown.
• 2004 BCCA 600 Watts v. Willie
  Issues relating to the maintenance of an adult child attending university. The appellant father advanced two grounds of appeal: (1) that the chambers judge erred by ordering the father to pay both child support and a proportionate share of the special and extraordinary expenses of the child, and (2) that the master who settled the order erred in his interpretation of the judge’s reasons for judgement. The defendant mother cross appealed on the ground that the chambers judge erred in not imputing deferred earnings to the father’s income in accordance with the Federal Child Support Guidelines.
  Held: The appeal is dismissed, the cross appeal is allowed. The father’s first ground of appeal was not taken below and the mother should not now have to reconcile her expenses with the child’s education budget since the record is incomplete. The father’s anxiety about duplication can be addressed when the child’s costs are periodically reviewed by the parties. On the second ground of appeal, the father’s interpretation of the chambers judge’s reasons was not reasonable. The master did not go beyond the chambers judge’s order.
  On the mother’s cross appeal, the chambers judge committed an error in principle in finding that the father’s deferred income should be used to calculate the father’s income for Guidelines purposes during the sabbatical year and not during the earning years. The father’s income was 100% of his salary during the earning years and the sabbatical year is a year off without pay. The fairest course of action is to calculate child support on 100% of his earnings through the earning years and wait and see what he does during his sabbatical year. If the sabbatical is used for productive educational purposes it may be determined that it does not attract imputation under s. 19(1)(a). If the father uses the sabbatical for world travel then a court may consider this to be the kind of intentional under-employment that attracts imputation under the Guidelines. The cross appeal is allowed and the order varied so as to calculate the father’s child support obligations on 100% of his actual earnings. The father’s obligation during the sabbatical year is remitted to the Supreme Court for determination on the basis of the facts as they unfold.
• 2004 BCCA 603 K.M. and S.M. v. British Columbia (Director of Child, Family and Community Services)
  Application under s. 9(6) of the Court of Appeal Act, R.S.B.C. 1996, c. 77 to review an order refusing leave to appeal an order made in the Supreme Court of British Columbia dismissing the applicants' appeal from a continuing custody order made pursuant to s. 49(5) of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46.
  The reasons of the chambers judge disclose no error in law or principle or any misapprehension of the facts. Applying what was said in Haldorson v. Coquitlam (City) (2000), 3 C.P.C. (5th) 225, 2000 BCCA 672, the review application was therefore dismissed.
• 2004 BCCA 605 Rohani v. Rohani
  Appeal from an order in a divorce action piercing the corporate veil of a closely held corporation to provide security in the assets of the company for an order for $230,000 compensation to the wife against the husband in lieu of her share of family assets, otherwise 30% of the Class A voting shares of the company. The husband controlled the company through his ownership of all its voting shares and had irregularly used company assets for personal and family purposes. The children of his first marriage held Class B non-voting shares. The finding by the trial judge that the Class A shares were a family asset and his valuation of those shares were no longer in dispute. HELD, the facts did not support piercing the corporate veil and the security order in the assets of the company was set aside. The wife was granted a constructive trust of the Class A shares to effect payment of the compensation order through payment to her of the husband's shareholder's loans and the declaration and payment of dividends by the company.
• 2004 BCCA 630 Rayvals v. Rayvals
  This is an appeal of an order that the husband pay to his ex-wife the sum of $500 a month indefinitely. The order also contained a provision that “provided that in the event that the plaintiff is able to obtain remunerative employment the defendant may apply for variation of duration and amount of spousal maintenance.” HELD: The Court said that no order, regardless of its wording or intent, can prevent a party from seeking a variation. However, the panel agreed that the clause as to variation should be struck out in that it might be read to restrict the husband’s right to apply for a variation of the order. Madam Justice Southin would have put an end date on the maintenance obligation, but the majority referred it back to the judge for review, even if there was no change in circumstances.
• 2004 BCCA 648 Lotzkar v. Lotzkar
  See reasons.
• 2004 BCCA 660 Greither v. Greither
  Application for stay of execution reused on the basis that the trial court has inclusive jurisdiction to hear such an application under s. 14 of the Family Relations Act with respect to orders made under that statute.
• 2004 BCCA 668 Cloutier v. Berg
  An application for leave to appeal an order dismissing a motion to produce the file of a psychologist who had prepared a report pursuant to an order made under s. 15 of the Family Relations Act was dismissed. The case, which concerns the care of two children, one of whom has special needs, is set for trial for five days in February 2005. An appeal of the interlocutory order could not be heard and determined prior to the trial date. An appeal of the order is also unlikely to succeed for the material filed on the motion provides no foundation for an order for disclosure being required.