



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Lu 
          v. Mao,







2007 
          BCCA 27



Date: 20070115





Docket: CA034352

Between:

Min 
    Lu

Respondent

(
Plaintiff
)

And

San 
    Liang Mao

Appellant

(
Defendant
)












Before:


The 
          Honourable Madam Justice Rowles




(In 
          Chambers)








S. 
          Mao


Acting on his own behalf




Sherwin 
          Mah


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver
,
British Columbia




9 January 2007




Place 
          and Date of Judgment:


Vancouver
,
British Columbia




15 January 2007







Reasons for Judgment of the Honourable Madam Justice 
    Rowles:

[1]

Mr. Justice Williamson, in reasons found at 2006 BCSC 1119, made the 
    following order on 20 July 2006 in matrimonial proceedings:

(1)        
    The defendants counterclaim/application to reapportion assets is dismissed,

(2)        
    The defendants claim for spousal support is dismissed,

(3)        
    The plaintiffs claim for special costs is dismissed, and

(4)        The plaintiff will have her costs 
    at Scale 3.

[2]

The defendant has brought an appeal from the order dismissing his claims 
    and now applies for the following orders:

1.  
    Pursuant to Rule 37, Linda Heaps, Linda Chen, and Min Lu attend and be cross-examined 
    on their affidavits before an official reporter or a commissioner for taking 
    affidavits designated by the court or a justice.



2.  
    Pursuant to Act 9(7) and Supreme Court Rule 56, Min Lu be found in contempt 
    of paragraph 2 and 3 of the Order of Master Taylor pronounced December 12, 
    2005, requiring her to producing (
sic
) bank records.



3.  Pursuant to 18(1) of the
Court of Appeal Act
, the execution 
    of the court order made by Mr. Justice Williamson on
July 20, 2006 be stayed.

[3]

At the conclusion of the hearing in chambers, I dismissed the appellants 
    application with reasons to follow.  These are my reasons for dismissing the 
    three parts of the appellants application.

Part One:  Pursuant to Rule 37, Linda Heaps, Linda Chen, 
    and Min Lu attend and be cross-examined on their affidavits before an official 
    reporter or a commissioner for taking affidavits designated by the court or 
    a justice.

[4]

The appellant confirmed that the affidavits of Linda Heaps, Linda Chen, 
    and Min Lu to which he referred in the first part of his application are not 
    affidavits sworn on any application filed in this Court.  According to the 
    reasons for judgment of Mr. Justice Bauman dated 12 June 2006, Linda Heaps 
    and Linda Chen are employees of Mr. Larry Kahn, the lawyer who had previously 
    acted for the plaintiff.  Ms. Heaps, Ms. Chen and Mr. Kahn were joined by 
    the appellant as third parties in the matrimonial proceedings.  Mr. Justice 
    Bauman dismissed the third party claim against them.

[5]

Rule 37 of the
Court of Appeal Rules
, B.C. Reg. 297/2001, 
    is found in Part 6 - Applications.  The first rule in Part 6 is Rule 32, which 
    provides:

32
This Part applies to every application made 
    to the court or to a justice except to the extent that these rules otherwise 
    provide or a justice otherwise orders.



[6]

Rule 37(1) provides:

37
(1) Any party wishing to cross-examine the 
    deponent of an affidavit filed on behalf of another party may apply to the 
    court or a justice for an order that the deponent attend and be cross-examined 
    before a commissioner for taking affidavits designated by the court or a justice.



[7]

Rule 37 of the
Court of Appeal Rules
permits the court 
    or a justice to order cross-examination of the deponent of an affidavit filed 
    in this court by another party to the appeal.   As noted above, Linda Heaps, 
    Linda Chen and Min Lu have not sworn affidavits on any application filed in 
    this Court.

[8]

There is no foundation to grant the order sought by the appellant in 
    the first part of his application.

Part two:  Pursuant to Act 9(7) and Supreme Court Rule 
    56, Min Lu be found in contempt of paragraph 2 and 3 of the Order of Master 
    Taylor pronounced December 12, 2005, requiring her to producing (
sic
) 
    bank records.

[9]

On the second part of his application, the appellant seeks to have 
    the respondent, Min Lu, held in contempt of court, for allegedly failing to 
    obey an order made by Mr. Justice Taylor in the trial court.   The appellant 
    relies on s. 9(7) of the
Court of Appeal Act
, R.S.B.C. 1996, 
    c.77 and Rule 56 of the
Rules of Court
, B.C. Reg. 221/90 in 
    bringing that application in this Court.

[10]

Section 9(7) of the
Court of Appeal Act
provides:

9
(7)  The court and a justice have the same powers 
    as the Supreme Court in relation to matters of contempt of court.

[11]

Rule 56 of the
Rules of Court
guides contempt proceedings 
    in the Supreme Court of British Columbia.

[12]

Contempt proceedings for failing to comply with an order of a judge 
    of the Supreme Court of British Columbia must be brought in trial court, not 
    this Court. The order made by Mr. Justice Taylor on 12 December 2005 was made 
    in the trial court, not the Court of Appeal, and predated the trial before 
    Mr. Justice Williamson.  The second part of the appellants application is 
    misconceived.

Part three:  Pursuant to 18(1) of the
Court of Appeal 
    Act
, the execution of the court order made by Mr. Justice Williamson on 
    July 20, 2006 be stayed.

[13]

On the third part of his application, the appellant seeks,
pursuant to s. 18(1) of the
Court of Appeal Act
,
a stay of the order granting the plaintiff 
    costs.  Section 18(1) provides:

18
(1)  
    After an appeal or application for leave to appeal is brought, a justice may, 
    on terms the justice considers appropriate, order that all or part of the 
    proceedings, including execution, in the cause or matter from which the appeal 
    has been taken are stayed in whole or in part.



[14]

Section 14 of the
Family Relations Act
, R.S.B.C. 1996, 
    c. 128 provides:

14
Despite any other enactment, if an order made 
    under this Act is appealed, unless the court that made it otherwise orders, 
    the order remains in full force and effect until the determination of the 
    appeal.

[15]

In this case, the matrimonial proceeding in which the appellant was 
    the defendant included a claim for divorce but, according to the reasons of 
    Mr. Justice Williamson, the divorce had been granted in July 2005.  The three-day 
    trial before Mr. Justice Williamson took place in July 2006 and was primarily 
    directed to the division or reapportionment of assets under the
Family 
    Relations Act
, although there was a claim advanced by the appellant 
    for spousal maintenance, presumably under the
Divorce Act
, R.S.C. 
    1985, c. 3 (2
nd
Supp.).

[16]

I understand from counsel for the respondent that the appellant has 
    already brought an application before Mr. Justice Williamson to stay the order 
    for costs and that the order was refused.  There is no transcript of the reasons 
    available in respect of that application so it is not clear on what grounds 
    the order was refused.  At the time the application for a stay was made in 
    the trial court, the costs awarded had yet to be assessed.

[17]

I understand that the hearing for the assessment of the costs awarded 
    against the appellant has now commenced before the Registrar and is expected 
    to conclude shortly.

[18]

An order for costs is an integral part of the judgment in a proceeding 
    and an order for costs may be reviewed as part of an appeal from the substantive 
    judgment:
Heppner v. Schmand
(1997), 29 B.C.L.R. (3d) 128 at 
    132 (C.A. Chambers) and
Monenco Ltd. v. Commonwealth Insurance Co.
(1999), 64 B.C.L.R. (3d) 307, 1999 BCCA 133 at paragraph 4.

[19]

There is no doubt that if the appellant had sought to stay a substantive 
    provision in the order made under the
Family Relations Act
, 
    s. 14 of that
Act
would apply.  In this case, however, no order 
    was made by the trial judge requiring either party to pay funds or transfer 
    assets to the other.  The appellant has appealed the order made under the
Family Relations Act
dismissing his claim but the stay he seeks 
    concerns only the order for costs.

[20]

Generally speaking, costs follow the event in civil proceedings and 
    family law is not an exception:
Gold

v.

Gold

(1994), 
    49 R.F.L. (3d) 56, (1993), 82 B.C.L.R. (2d) 180 (C.A.).
The respondent was successful in the proceedings at trial 
    and was awarded her costs.  The appellant has not put forward any error in 
    principle in respect of the trial judges award of costs against him.

[21]

In the circumstances described, there is no foundation to grant an 
    order staying the order for costs made in the trial court and that is so regardless 
    of whether the application is properly brought under s. 18(1) of the
Court 
    of Appeal Act
or under s. 14 of the
Family Relations Act
.

Costs of the application and approval of the form of 
    the order

[22]

The respondent sought costs of the appellants unsuccessful application 
    in a fixed amount to be paid forthwith.  I declined to make that order and 
    directed that the costs of the application should await the determination 
    of the appeal.

[23]

I note that Madam Justice Ryan has granted an application brought by 
    the respondent for security for costs of the appeal and that the application 
    for security for costs of the trial has  been adjourned pending the completion 
    of the assessment of costs.  The appellant informed me that he had paid the 
    $5000 ordered as security for costs of the appeal.

[24]

The division hearing the appeal may determine whether the costs of 
    the appellants unsuccessful application should go to the respondent and, 
    if so, whether ordinary or special costs ought to be awarded.

[25]

Respondents counsel will have carriage of drawing the order.  The 
    order is to be sent to the appellant for his approval.  If he refuses to sign 
    and return the order without having shown any error in the form of the order 
    within ten days of the order being mailed to him, the order may be submitted 
    for entry without the appellants signature.

Summary

[26]

The appellants application is dismissed.  Costs of the application 
    are in the discretion of the division hearing the appeal.



The Honourable Madam Justice Rowles




