



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Madden v. Dahl,









2014 BCCA 23




Date: 20140122

Docket: CA040826

Between:

Bryce William
Madden

Respondent

(Plaintiff)

And

Diane Noelle Dahl

Appellant

(Defendant)






Before:



The Honourable Madam Justice Newbury

The Honourable Madam Justice D. Smith

The Honourable Madam Justice Garson




Supplementary Reasons
to
Madden v. Dahl
, 2013 BCCA 373.




Counsel for the Appellant:



F.A. Schroeder





Counsel for the Respondent:



S.L. Specht





Place and Date of Hearing:



Vancouver, British
  Columbia

August 16, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

August 16, 2013





Written Submissions Received:



November 7 and 21,
December 4, 2013





Date of Supplementary Judgment:



January 22, 2014









Supplementary Reasons of the Court








Summary:

The mother appealed from an
order of a Supreme Court judge that, on appeal, set aside and varied a custody
and access order made by a Provincial Court judge under the Family Relations
Act, awarding the father primary residence of the parties two children with specified
access to the mother. The mothers appeal was dismissed. She subsequently filed
for bankruptcy. The father obtained an order from the Supreme Court allocating
25 percent of the costs of the proceedings in that court to the issue of child
support. He sought a similar order from this court. Held: Application dismissed.
The sole issue on appeal related to the childrens living arrangements. The
issue of child support was never raised or addressed.

Supplementary Reasons for
Judgment of the Court:

[1]

In
Madden v. Dahl
, 2013 BCCA 373, we dismissed an appeal by the
appellant mother from an order of a Supreme Court judge that, on appeal, set
aside and varied a custody and access order made by a Provincial Court judge
pursuant to the
Family Relations Act,
R.S.B.C. 1996, c. 128 [
FRA
].
The sole issue on appeal before this Court related to the primary residence of
the parties two children. The dispute arose in the context of a mobility issue.
Upon separation, the father continued to reside in the matrimonial home in a
community in northern British Columbia, where the children had been raised, and
the mother resided at the home of her parents in a community in the Okanagan
where she had moved. The Provincial Court judge awarded the parties joint
custody of the children with alternating primary residence between the parties
every school year. The respondent father successfully appealed that order to
the Supreme Court, which awarded him primary residence of the children with specified
access to the mother. On appeal to this Court, the order of the Supreme Court
was upheld.

[2]

Section 23 of the
Court of Appeal Act,
R.S.B.C. 1996, c. 77,
provides that [u]nless the court or a justice otherwise orders, the party who
is successful on an appeal is entitled to costs of the appeal including the
costs of all applications made in the appeal. We are advised that counsel
agreed upon costs of the appeal at $6,948 for the father. Thereafter, the
mother filed for bankruptcy based on the extent of her liabilities for legal
fees and court costs related to the proceedings. We are further advised that
there are arrears of child support which remain unpaid by the mother.

[3]

In light of these events, the father applied to the Supreme Court judge
for an order allocating a percentage of the costs of the proceedings to the
issues of child and spousal support. The anticipated effect of this allocation
is that the portion of the costs allocated to support will survive bankruptcy
and subsequent discharge pursuant to s. 178(1)(c) of the
Bankruptcy and
Insolvency Act,
R.S.C. 1985, c. B-3 [
BIA
]. The Supreme Court
judge acceded to this request and ordered that 25 percent of the costs of the
proceedings in the Supreme Court be allocated to the issues of child and
spousal support.

[4]

Before this Court, the father applies for a similar order pursuant to
s. 9(1)(c) of the
Court of Appeal Act,
which provides that the
court may make or give any additional order that it considers just. In
particular, the father seeks an order that 50% (or such other amount as the
Court deems appropriate) of the costs awarded to the Appellant in the appeal of
this matter decided August 16, 2013 are apportioned to the issue of child
support for the purposes of the
Bankruptcy and Insolvency Act
,

R.S.C.
1985, c. B-3. He submits that a higher allocation from this Court is
appropriate based on the matter progressing to a higher level of Court on [the
mothers] application.

[5]

With respect, we are of the view that the order requested is not
available to the father. The sole issue on appeal related to the primary
residence of the children. The matter of child support was never raised or
addressed in any manner before this Court. Accordingly, we find ourselves
unable to accede to the fathers request and dismiss the application.




The
  Honourable Madam Justice Newbury





The
  Honourable Madam Justice D. Smith





The Honourable Madam Justice
  Garson







