bc take five june 2011
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The May 2011 British Columbia edtion of OnPoint Legal Research's monthly newsletter, summarizing the top five cases from the British Columbia Court of Appeal from the previous month.TRANSCRIPT
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June 2011
BRITISH COLUMBIA EDITION EDITION
op
Featured Cases:
FamilyLaw;MaritalProperty;EqualizationorDivision
FamilyLaw;CustodyandAccess;BestInterestsofChild
CivilLitigation;CivilProcedure
CivilLitigation;JudgmentsandOrders;FraudulentConveyances
AboriginalLaw;AboriginalRights;FishingRights
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Wu v. Sun, 2011BCCA239AreasofLaw:FamilyLaw;MaritalProperty;EqualizationorDivision
UnderAppeal:JusticeBurnyeat
The appellant in this case was the husband, Mr. Sun. The respondent
was the wife, Ms. Wu. The parties were married for six years and had one child. They separated in March 2001, and divorced in July 2009, after a long and difficult trial. Neither party brought much into the marriage, but they enjoyed significant gifts from the husband’s parents during the marriage, enabling them to enjoy a lavish lifestyle. The husband’s family purchased the matrimonial home, which they transferred to the husband’s name. The husband’s family also owned several businesses which provided an income to the husband. When the parties separated, the parties entered into arrangements for spousal and child support. However, prior to the date of trial, the husband consistently failed to pay the spousal and child support ordered. The trial judge was charged with the difficult task of apportioning the family assets given that the evidence was messy and incomplete. The trial judge apportioned the family
BACKGROUND
CLICKHERETOACCESSTHEJUDGMENT
assets at 45% to the wife and 55% to the husband. He determined that the husband had accumulated $130,000 arrears in interim support prior to trial. The trial judge placed a value of $1,600,000 on the husband’s interest in the family entities, another $1,600,000 on the value of investments the husband made in China and Hong Kong, $2,000,000 on the family home contents and $3,000,000 on the sale of the home. In addition, the judge ordered $2,500 per month for child support, $47,500 for arrears in child support, extraordinary expenses of $1,365 per month, plus $650 per month for the additional expenses, $6,000 per month for spousal support and payment of $57,000 for arrears in spousal support. The husband appealed on grounds that the trial judge erred in determining the family assets, in reapportioning the assets, and in imputing his income for support purposes. He argued for an 80/20 split of family assets in his favour.
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The appeal was allowed in part. The Court of Appeal
found that the trial judge correctly assessed the support orders. It was clear that the husband had failed to obey the support orders issued prior to trial, flouted or ignored court orders, and dissembled and evaded questions about his financial affairs. The Court held the husband could not invoke the jurisdiction of the appellant court to review an order he had largely ignored. The Court further found that
the trial judge did not err by piercing the corporate veil and holding that the cash in the entities was at the husband’s disposal and that de facto the entities were his. By refusing to make proper disclosure, the husband had placed himself in a position that precluded him from achieving the remedy he sought. The Court found that the judge’s decision on apportionment was discretionary and not unreasonable. As the husband would never pay
spousal support, a lump sum award between $500,000 and $750,000 was appropriate. However, the Court found that the trial judge did err in putting any value on the overseas investments. The $1,600,000 ascribed to this item had to be taken out of the family assets. The Court ordered that the remainder of the proceeds of sale of the matrimonial home be paid out to the wife.
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Wu v. Sun (cont.)
APPELLATE DECISION
June2011
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The appellant in this case was the mother, Ms. Mitchell-Hejzlar. The respondent
was the father, Mr. Hejzlar. The parties separated in 2004 after six years of marriage. They had one child. Upon separation, the parties entered into a separation agreement which provided, among other things, that they would have joint custody and joint guardianship over the child, with the child’s primary residence being with the appellant. In addition, the agreement provided that neither party would move out of the area without the consent of the other or a court order. Shortly after the parties separated, the appellant commenced a relationship with her current husband. They began cohabiting in 2005 and, as the appellant was the child’s primary caregiver, the child resided with them. They married in 2006 and since then had two children of their own. In April 2009, the appellant’s husband, who was the sole income earner, was given three months’ notice of termination due to a work shortage. After commencing an extensive employment
search, he was offered a position in Edmonton, which he accepted. The appellant then advised the respondent of the development and her desire to relocate to Edmonton. The respondent did not agree with the child moving which led the appellant to seek an order for joint custody and permission to relocate to Edmonton with the child. The judge found that both parents were fully capable of parenting the child and would provide suitable housing. However, he found the parties’ current location was superior to Edmonton as the parties’ extended families were located in the area and their support and access would be lost if the child moved. Consequently, he concluded that it was in the child’s best interests to remain in his current location with the appellant and his step-brothers and that residency should change to the respondent if the mother decided to move to Edmonton. The appellant appealed this finding on grounds that the judge erred in failing to consider the child’s best interests in the context of his strong relationship with his siblings and step-father and the family’s economic imperative that precipitated her husband’s move to Edmonton.
Hejzlar v. Mitchell-Hejzlar, 2011BCCA230AreasofLaw:FamilyLaw;CustodyandAccess;BestInterestsofChild
UnderAppeal:JusticeBurnyeat
BACKGROUND
CLICKHERETOACCESSTHEJUDGMENT
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Hejzlar v. Mitchell-Hejzlar, (cont.)
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APPELLATE DECISION
The appeal was allowed. The Court of Appeal
determined the order made did not incorporate the respectful and balanced stance required by the jurisprudence and slipped into the status quo as the default position. The Court found the trial judge erred in putting weight on the mother’s evidence that she would not relocate to Edmonton without the child and in focusing his attention on the necessity for her move.
Furthermore, the judge failed to consider the best interests of the child’s siblings and that the order had the effect of either separating the child from his siblings or separating his siblings from their father. The Court granted the parents joint custody of the child with the mother to have primary residence, which included permission to relocate to Edmonton.
June2011
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Gehlen v. Rana, 2011BCCA219AreasofLaw:CivilLitigation;CivilProcedure
UnderAppeal:JusticeLeask
BACKGROUND
CLICKHERETOACCESSTHEJUDGMENT
The appellant in this case was Sukhdip Rana.
The respondent was Hina Gehlen. The respondent, a 36-year-old woman with an extensive clinical history including a diagnosis of fibromyalgia, claimed she was a passenger in the car operated by her husband when the car collided with the appellant. The accident was a minor one, involving no significant impact. After the accident, the respondent visited her doctor 14 times complaining of soft tissue injuries and other problems that she had also reported prior to the accident. The appellant
admitted responsibility for the accident, but pleaded that the appellant was not in her husband’s car. Seven months prior to trial, the appellant made a formal offer to settle for $22,000. The respondent rejected this offer and made an informal counter offer for $173,146. At trial, the jury ultimately awarded the respondent damages amounting to $13,486, an award within the monetary limit of the Provincial Court. In awarding costs, the trial judge did not consider the appellant’s submission that the respondent should have brought her action in Provincial Court. The trial
judge further found that it was reasonable for the respondent to have refused the appellant’s offer to settle, given that the appellant had made what amounted to allegations of fraud against her. The judge found that, at the time of the appellant’s offer, the respondent thought she had a good claim and had no reason to anticipate the appellant’s vigorous attack on her credibility with respect to her employment and the impact that other accidents had on her condition. The judge awarded the respondent costs of the entire proceeding.
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Gehlen v. Rana, (cont.)
APPELLATE DECISION
The appeal was allowed. The Court of Appeal determined
the judge erred in failing to address the appellant’s argument that the respondent’s action should have been commenced in Provincial Court. When she commenced her action, the respondent was aware that the accident was very minor and that she would be entitled to no more than very modest non-pecuniary damages for her injuries. She had no prospect of recovering anything for future income loss, given that her post-accident earnings exceeded her pre-accident earnings. Because the respondent lacked a compelling reason for bringing her action in the Supreme Court, the appellant was only required to pay her disbursements to the date of the settlement offer. The judge also made a fundamental flaw in his reasoning by finding that the respondent had
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52 The Society of Notaries Public of British Columbia Volume 19 Number 2 Summer 2010
in her mind the appellant’s denial of liability for her injuries when she considered the settlement offer. There was no reason to penalize the appellant for the respondent’s failure to anticipate attacks on her credibility. The Court found that the respondent’s offer to settle ought to have been accepted. The Court therefore ordered the appellant to pay the respondent’s costs and disbursements from the date of the offer to settle.
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June2011
The appellant in this case was Mr. Kenneth Sutton.
The respondents were Mr. Vincent Oshoway and Ms. Valerie Walker. The appellant was a judgment creditor of the respondent Ms. Walker. Ms. Walker transferred her interest in certain real property to the respondent Mr. Oshoway and herself as joint tenants. The appellant then commenced the present action, alleging the transfer was a fraudulent conveyance. The respondents both defended, claiming that Ms. Walker never had a beneficial interest in the property, but had been placed on title to assist Mr. Oshoway to obtain mortgage financing. They claimed the subsequent transfer was effected at the end
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of their relationship, again to facilitate the securing of mortgage financing for Mr. Oshoway alone. They also claimed Ms. Walker had no knowledge of the appellant’s judgment against her. At the time pleadings closed, Mr. Oshoway’s mortgage was in foreclosure and he wished to sell the property. He paid a sum representing the value of Walker’s one-half interest in the property into court to clear title. The respondents then both applied for summary dismissal of the appellant’s action. Walker failed to appear for the summary trial. The trial judge was satisfied that Walker had a beneficial interest in the property she intended to place beyond the appellant’s reach by effecting the transfer to Mr. Oshoway. However, the judge noted that since Walker was not before the court, the appellant could only seek a remedy against Mr. Oshoway. The trial judge also rejected Mr. Oshoway’s claim that the $25,000 payment he made was a repayment of loans and found it consideration for the property transfer. Finally, the judge found insufficient evidence to establish that Mr. Oshoway actively participated in Ms. Walker’s fraud, and as such, held that Mr. Oshoway should not be held accountable for Ms. Walker’s debts.
Sutton v. Oshoway, 2011BCCA245AreasofLaw:CivilLitigation;JudgmentsandOrders;FraudulentConveyances
UnderAppeal:JusticeBowden
BACKGROUND
CLICKHERETOACCESSTHEJUDGMENT
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Sutton v. Oshoway, (cont.)
APPELLATE DECISION
The appeal was dismissed. The Court
of Appeal held that the burden was on the appellant to show that the Fraudulent Conveyance Act R.S.B.C. 1996, ch.163 applied to the transaction between the respondents. In order to do so, the appellant needed to prove that Ms. Walker
transferred the property to put it out of his reach, and further, that Mr. Oshoway actively participated in Ms. Walker’s scheme. At no point did Mr. Oshoway ever acknowledge that he purchased the property for good and valuable consideration. As such, the appellant could not
complain that the judge found Mr. Oshoway was not an active participant in Ms. Walker’s scheme. The Court ultimately concluded that given the absence of any palpable or overriding error, it would not interfere with the judge’s factual findings.
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Ahousaht Indian Band v. Canada (Attorney General), 2011BCCA237AreasofLaw:AboriginalLaw;AboriginalRights;FishingRights
UnderAppeal:JusticeGarson
BACKGROUND
CLICKHERETOACCESSTHEJUDGMENT
The appellant in this case was the Attorney
General of Canada. The respondents were representatives of five Aboriginal bands. The respondents brought an action claiming a right to fish for any species of fish in the environs of their territories and to sell fish. They claimed that at the time of contact with Europeans, their ancestral communities fished and traded fish, and that these activities were intrinsic aspects of their culture. They argued that those fishing and trading activities founded their modern-day Aboriginal rights to fish commercially, and that Canada’s fisheries regime unjustifiably infringed those rights. The respondents claimed the right to harvest all species of fisheries resources within their fishing territories. Canada disagreed, and argued that the respondents did not posses an Aboriginal right to trade or to sell fish or that its legislation infringed
any Aboriginal rights held by the respondents. Canada argued that, if there was any infringement, it was justified by its need to conserve and to manage the fishery in a sustainable way. The trial judge found the respondents established that they fished and traded fish at the time of contact, and that there was reasonable continuity between the pre-contact practice of fishing. The trial judge clarified that the Aboriginal right to fish was not unlimited, but it encompassed a right to sell fish in the commercial marketplace. As such, the trial judge concluded that
the legislation prima facie infringed the respondents’ Aboriginal right. Further, the trial judge held that Canada’s regulatory regime denied the respondents their preferred means of exercising their Aboriginal rights and had imposed undue hardship on them. Canada appealed this finding, and argued that the trial judge erred in findings that the respondents’ ancestral communities were engaged in trading fisheries resources pre-contact and in finding that this was an integral practice of such pre-contact societies.
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The appeal was allowed in part. The Court of
Appeal concluded there was evidence supporting the trial judge’s conclusion in favour of the ancestral practices asserted by the respondents. The trial judge did not err in finding that this translated into a modern Aboriginal right of the plaintiffs to fish and sell fish. The Court further found the trial judge properly placed primary focus on evidence about the pre-contact practice. The trial judge did not err when she failed to analyze the ancestral practice, the alleged modern rights to harvest and sell fisheries resources and any infringement thereof by the extant regulatory system on a species-by-species basis and for each individual band. To seek a greater degree of specificity was neither possible nor practicable. It was thus open to the trial judge to conclude that the trading in fisheries resources by the ancestors of the respondents
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Ahousaht Indian Band v. Canada, (cont.)
APPELLATE DECISION
was integral to the culture of this society around the time of first contact. The trial judge was not required to go further in delineating what she found to be the trading practices of the ancestral society. However, the Court held the trial judge erred in finding that the respondents’ Aboriginal rights to fish and sell fish extended to “all species of fish within the environs of their territories”. So characterized, the respondents’ rights could include the right to harvest and sell geoduck clams within their territories in the absence of any support in the evidence of such an ancestral practice. As the geoduck fishery was a modern high tech fishery of very recent origin, it would have been impossible for the ancestors of the respondents to engage in this type of marine resource harvesting prior to contact with Europeans. There was no adequate basis in the evidence to support an ancestral practice that would translate into any modern right to participate in harvesting and selling this marine food resource. As a result, the Court varied the trial judge’s order to allow the parties one year from the date of the judgment to engage in consultation and negotiation.
June2011
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