B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

FAMILY 2008

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• 2008 BCCA 2 Frith v. Frith
  Appeal from a finding of civil contempt following the mother’s disobedience of court orders granting the father specific access to their children. The intentional breach of a court order is sufficient for contempt and is not justified by a quandary. If concerned that granting access would lead to the children being apprehended by the Ministry, the mother’s proper course was to seek a variation of the access order. Evidence of a quandary, if accepted, is relevant only to penalty. Appeal dismissed.
  Chiasson J.A. concurring expressed concern that contempt proceedings in matrimonial proceedings not be dealt with casually. Contempt is an affront to the dignity of the court; a danger to the integrity of the legal system. It is not a private matter. An award of costs is not an appropriate penalty in contempt proceedings.
• 2008 BCCA 5 J.A.S. v. H.M.
  H.M. appealed from an order that she pay special costs of a bitterly contested custody trial between her daughter (B.) and J.A.S. H.M. was not a party to the original custody proceeding but was added as a party for the purpose of seeking special costs against her. The trial judge found that H.M. had participated in breaches of court orders by B. and had otherwise acted in a reprehensible manner during the course of the trial so as to justify an award of special costs. He also awarded J.A.S. special costs of the special costs application, and of any future assessments of special costs. Held: Appeal dismissed. The procedure followed by the trial judge in awarding special costs of the trial against H.M. was not unfair, and he did not err in awarding special costs against her for the special costs proceedings and for future assessment proceedings. Further, H.M. had no standing to challenge earlier orders made by the trial judge in which he waived privilege over B.’s file. The privilege was that of B. and could not be claimed by H.M. for her own benefit.
• 2008 BCCA 21 Lombardo v. Lombardo
  Ms. Lombardo applied for security for costs of the appeals, security for the trial judgment and security for costs of the trial. Mr. Lombardo appealed the orders of the trial judge in three related actions arising from the breakdown of the Lombardo marriage. The trial judge made significant findings of fact and credibility against Mr. Lombardo in the actions and on a subsequent application by Mr. Lombardo for reconsideration. Held: In the circumstances, security totalling $300,000 was ordered, which was in addition to another approximately $400,000 Mr. Lombardo agreed should be paid to Ms. Lombardo pending the appeals.
• 2008 BCCA 49 Bain v. Bain
  Appeal from a sole custody order was dismissed. The trial judge did not misuse evidence of the appellant’s character. The conduct of the appellant’s trial counsel did not depart significantly from objective norms and did not affect the result. Fresh evidence from the appellant’s psychiatrist was not admitted as it could not reasonably be expected to produce a different result. A restraining order was not set aside as there was evidence to support it. If the risk has diminished, then an application to set aside the restraining order should be made in Supreme Court.
  Appeal from the equal division of a debt to the respondent’s family was dismissed except insofar as the respondent used that money to cover her share of the section-15 report which is a court cost to be addressed separately. Appeal from the reapportionment of net proceeds of the family residence was allowed, and an equal division was substituted. Appeal from the child support order was dismissed. Cross appeal of the finding that certain credit card debts were incurred for a family purpose was dismissed.
• 2008 BCCA 68 Shellito v. Bensimhon
• 2008 BCCA 72 Daffner v. Sparkes
  The Court dismissed an appeal from an order refusing to reapportion the family residence and adjacent vineyard in the husband’s favour or order spousal support. It found no error in the trial judge’s conclusion that the appellant was economically independent and self-sufficient and not entitled to either remedy.
• 2008 BCCA 96 Rick v. Brandsema
• 2008 BCCA 135 Wolowidnyk v. Wolowidnyk
  Appeal from the dismissal of the husband’s claim to reapportionment of the family home allowed.
• 2008 BCCA 161 Shields v. Shoults
  No error of jurisdiction occurred when a provincial court judge made an order of paternity and child maintenance in the appellant’s absence. The appellant retained counsel on the application but failed to communicate with him and the lawyer withdrew for that reason. The judge was not required to adjourn to effect further service.
• 2008 BCCA 162 Bullock v. Bullock
  The Court refused to entertain an appeal from a failure to remit a provisional order back to the issuing court, pursuant to s. 19 of the Divorce Act, because the appellant did not provide a convincing reason why he could not meet his spousal support obligations. Appeal dismissed.
• 2008 BCCA 166 McDermott v. McDermott
  The defendant at trial appealed from two orders of the chambers judge in this ongoing matrimonial dispute. He raised a number of issues on appeal, seeking clarification of his spousal support obligation, a rehearing of his application for access to the parties’ two children, reimbursement of lost access expenses and an order that further proceedings be heard by a new judge.
  The relief sought by the appellant was granted in part. The appellant retained an obligation to pay a further 11 months of spousal support stemming from the original spousal support order. His request that access issues be remitted to the trial court was granted. The issue of whether the chambers judge would remain seized of the proceedings was left to the discretion of the chambers judge. The respondent was ordered to have an address for service in British Columbia.
• 2008 BCCA 177 H.(U.V.) v. H.(M.W.)
  Appeal of child support order made against a stepfather pursuant to the Child Support Guidelines Regulation under the Family Relations Act, which essentially mirrors the federal Child Support Guidelines. Stepfather had been ordered to pay his 'table amount ' under the Guidelines while the natural father had been ordered to pay substantially less than his table amount, given that he had started a new family, relying in part on the stepfather's 'undertaking', made when he was living with the mother, to support the children.
  APPEAL ALLOWED: Section 5 of the Guidelines requires that when making order against stepparent, Court must consider the legal support obligation of any other parent – in this case, the natural father. Court below had not determined how much the natural father was actually paying, but was required to quantify his obligation before turning to the stepparent's obligation. Given the mandatory wording of, and case authority re, s. 3, that obligation could only be the table amount. Custodial parent – in this case, the mother – could not bypass the father's obligation and obtain the full amount of support needed by the children, from the stepfather. Court bound to consider the Guidelines, especially the children's needs and standard of living, in deciding what, if anything, stepparent should pay under s. 5. Stepfather ordered to supplement natural father's support in this case. Comments re the discretion given to court under s. 5. Court below had erred in considering the stepparent's previous 'undertaking', as it was not a factor referred to in the Guidelines or in s. 5.
  Court below had not erred in making a retroactive order after stepfather disobeyed an earlier order requiring him to advise mother of changes in his income. Stepfather argued on appeal that because he had not been notified that shared custody of the children had ceased some years ago, natural father should pay “arrears” of support and if stepfather were also required to do so, mother would receive a “windfall”. On review of the factors referred to by the SCC in DBS v. SRG (2006), Court of Appeal held the father should not be ordered to pay retroactive support.
  Court of Appeal also considered whether there should be retroactive adjustment or even “refund” of amounts paid, pending appeal, by the stepfather pursuant to the order appealed from. Based on the children's interests, Court decided no such adjustment should now be made. New support order would apply from May 1, 2008.
• 2008 BCCA 178 A.M. v. British Columbia (Director of Child, Family & Community Service)
  The appellant appealed from the order of a Supreme Court judge, who allowed the appeal of the Director of Child, Family and Community Service from the order of a Provincial Court judge granting the appellant access six times a year to her eight-year-old child who had been in the continuing custody of the Director and in the foster care of prospective adoptive parents since the age of 11 months. Held: appeal dismissed. The appeal judge made no errors in her analysis and application of the appellate standard of review and the relevant legal principles. The Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 has not changed the legal principles applicable to making an access order when a child is in continuing custody of the Director and the plan of care is for adoption. The trial judge failed to apply those principles.
• 2008 BCCA 187 McCabe v. McCabe
• 2008 BCCA 196 Gurtins v. Goyert
  The appellants appealed from a judgment finding them in contempt of two court orders. Held: Appeal allowed. The chambers judge found that the appellants had breached the intent of the orders. In so doing, she interpreted the orders having regard to the transcripts of various court appearances and reasons for judgment in the underlying proceedings. This was an error, as obligations and responsibilities under court orders must be set out on the face of the orders. There was nothing on the face of either order requiring the appellants to do what they were found to have failed to do. Persons subject to court orders are not required to look outside the orders to determine what they are required to do, or refrain from doing.
• 2008 BCCA 207 Donnelly v. Polly
  Following a 21 year relationship, each party claimed an interest in the assets of the other on trust principles. The trial judge awarded each of the parties an interest in the assets of the other and granted the defendant’s claim for spousal support. The defendant appealed on the basis that the trial judge had failed to conduct the requisite benefit/detriment analysis. Appeal dismissed. No significant errors of fact of misapprehension of evidence demonstrated.
• 2008 BCCA 214 Loesch v. Walji
  Appeal from interim support orders (child support for four children at $30,000 per month; spousal support at $50,000 per month). The standard of review is as set out in Hickey v. Hickey (SCC): appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong. Held: appeal dismissed. The payor’s contention that no support should be ordered because he had always provided generously for his family was untenable in light of the substantial withdrawal of funding that led to the applications for interim support. The central factors to consider on an interim support application, for either child or spousal support, are the means or ability to pay support, and the needs of the spouse and children. In the unusual circumstances of these wealthy parties, the orders were not unreasonable or inappropriate. The concept of “need” is a flexible and contextual one. In this case, a high standard of living had hitherto been supported by voluntary payments of the payor. There was sufficient, uncontradicted evidence before the chambers judge of the payor’s ability to pay. In the event entitlement to or quantum of support is altered at trial, there are sufficient assets to permit readjustment.
• 2008 BCCA 229 Dhein v. Pratt
  Family Law: Application for leave to appeal from and a stay of an order for the sale of the matrimonial home made on an interim application.
  On the proposed appeal the applicant wished to adduce fresh evidence to support a case not pleaded in seeking to have the issue retried.
• 2008 BCCA 239 Zhu v. Li
  Applications for extension of time and for leave to appeal two decisions of the trial judge refusing a reopening of the trial. Applications dismissed. The appellant has virtually no prospect of success in demonstrating that the refusals amount to an injustice.
• 2008 BCCA 245 Smith v. Smith
  Family law appeal dealing with various property and support issues.
• 2008 BCCA 249 Lungu v. Jarvis
  An application to vary an order in chambers was dismissed. No error in the disposition was established or, indeed, suggested.
• 2008 BCCA 290 Jarvis v. Lungu
  Application for an extension of time to file Appeal Record, Appeal Books and Transcripts dismissed. Appeal dismissed for failure to comply with the Rules and order of a justice. Cross-appeal dismissed as abandoned by consent of the appellant on the cross-appeal.
• 2008 BCCA 302 Galloway v. Galloway
  The appeal was placed on the inactive list pursuant to s. 25(1) of the Court of Appeal Act. The appeal and cross-appeal were to stand dismissed as abandoned on June 8 and 22, 2008 respectively pursuant to s. 25(5). On June 6, 2008 the parties agreed to adjourn the appellant’s application to remove the appeal from the inactive list to be heard before June 30, 2008 and the respondent purported to agree that the appeal would not be dismissed prior to the application being heard. On June 27, 2008, the parties again agreed to adjourn. The Court refused to sign a consent order purporting to confirm the appeal and cross-appeal would not be dismissed prior to the hearing of the appellant’s application. Neither the parties nor the Court can prevent the operation of s. 25(5). Both the appeal and cross-appeal stand dismissed as abandoned. It is open for the Chambers judge hearing the application to treat it as an application under s. 25(6). There is no application concerning the cross-appeal. Although a Chambers judge may address the reinstatement of a cross-appeal in the absence of an application under s. 25 of the Act, to do so, generally an application with appropriate supporting material should be filed.
• 2008 BCCA 308 Rick v. Brandsema
  The trial judge gave judgment in favour of the respondent wife, which included $116,500 with respect to assets not disclosed by the appellant husband. The husband appealed generally from the judgment, but later abandoned the appeal concerning the $116,500. While the $116,500 remained a live issue, the wife successfully garnished $98,066.17. After negotiations, the Court issued a consent order providing for the payment of the $98,065.17 to the wife. Repayment of this sum to the husband if he were successful on the appeal was secured by a mortgage on the wife’s home. The husband was successful on the appeal, although the $116, 500 was not in issue. The wife obtained leave to appeal to the Supreme Court of Canada. She now wants to sell her home and applies for orders staying execution on any money owed to the husband pending her appeal pursuant to s. 65 of the Supreme Court Act and varying this Court’s order to substitute for the mortgage $60,000 paid into counsel’s trust account. The $60,000 is owing by the wife to the husband taking into account the amount garnished by and paid to her, interest and trial and appeal costs. The husband opposed the orders and seeks payment of the $60,000. Held: orders granted. The only part of s. 65(1)(d) of the Supreme Court Act that is relevant on this application concerns costs. The calculation that is at the root of the $60,000 relates to the $116,500 which was not pursued on appeal. To address only costs would be to ignore the complexity of the arrangements made by the parties. Section 65(4) provides authority to modify a stay imposed by s. 65(1). In the interests of justice the status quo should be maintained and the sale of the wife’s home facilitated.
• 2008 BCCA 321 Jakob v. Jakob
  An order extending the time within which to appeal an order made in February 2008 was granted. Directions were also given.
• 2008 BCCA 328 Galloway v. Galloway
  The appeal and cross-appeal are reinstated on conditions that include promptly taking steps to resolve disputed questions in the Supreme Court.
• 2008 BCCA 355 Boychuck v. Singleton
  An application brought in the Supreme Court under the Family Relations Act to vary the access provisions in a consent court order was dismissed. On appeal, the appellant argued that the chambers judge had erred in not properly applying the two-step test in Gordon v. Goertz. Appeal dismissed. The chambers judge correctly concluded that the appellant had not demonstrated a material change in circumstances that required a variation in the terms of the prior consent order and therefore made no error in dismissing the appellant’s application.
• 2008 BCCA 356 Farand v. Jardine
  Application for leave to appeal dismissed.
• 2008 BCCA 364 Jarvis v. Lungu
  Review of Court of Appeal chambers judge’s refusal to extend time to appeal in matrimonial action. Order upheld as no error shown.
• 2008 BCCA 374 Chera v. Chera
  The father and paternal grandparents of a four-year old child jointly sought sole custody of the child. They appealed the order awarding sole custody and guardianship of the child to the mother. The trial judge correctly applied the best interest of the child test on an initial award of custody under the Divorce Act and considered all the relevant factors including the “modified” approach to the principles listed in the second stage of the test in Gordon v. Goertz as directed in Nunweiler v. Nunweiler, the maximum contact principle in s. 10 of the Divorce Act, the “common sense approach” as articulated in A.K. v. D.K., that all other things being equal parents’ custodial claims should not be lightly set aside by third parties, and gave proper consideration to the recommendations in the s. 15 report.
  The trial judge’s finding that jewellery gifted to the wife by the paternal grandparents on her marriage was a personal asset was upheld, as well as his awards of retroactive and prospective child and spousal support.
  

Yukon Judgments:

• 2008 YKCA 10 Holmes v. Matkovich
  Matrimonial case in which husband had failed to provide information re his assets and income and failed to comply with three disclosure orders made pre-trial. Court therefore struck his pleadings and ordered under R. 2 that trial proceed on “uncontested basis”. Husband did not appear at trial and now appeals the disposition of family property (largely in wife’s favour) and spousal support order and seeks to adduce “fresh evidence” explaining his failure to provide disclosure and describing new circumstances.
  Held: If husband’s new evidence is correct, it may have been unjust to proceed with trial on uncontested basis, which is done only in the most extreme cases. However, Court of Appeal cannot determine whether the evidence withstands scrutiny. Property aspects of trial judge’s order stayed on condition husband pay full costs incurred by wife at trial and appeal. If costs not paid and property aspects not set down by October 15 for re-trial, wife may apply to re-instate trial judge’s order.
  Appeal of spousal support order dismissed. Husband may seek variation in court below if change in circumstances made out.