






Citation:



T. v. T.



Date:
20030107











2003 BCCA 99



Docket:



CA030339





Registry:  Vancouver





COURT OF
            APPEAL FOR BRITISH COLUMBIA





ORAL REASONS FOR JUDGMENT





BEFORE THE HONOURABLE

Madam Justice Ryan









January 7, 2003

























Vancouver,
        B.C.













BETWEEN:





J. T.





APPELLANT

(PLAINTIFF)





AND:





D. S. T.





RESPONDENT

(DEFENDANT)






















M. Wood



appearing for
            the Appellant





M. Schuman



appearing for
            the Respondent







[1]

RYAN,
          J.A.
: This is an application pursuant to
          s. 10(1) of the
Court of Appeal Act
for an extension
          of time to file an appeal.  It arises as the result of a decision in
        a matrimonial case.

[2]

On July
      15, 2002, Mr. Justice Hunter rendered
        judgment in this family law proceeding.  In his reasons for judgment
      Mr. Justice Hunter stated at paras. 41 and 44:

[41] There was an imbalance in the dollar amount
        of payments made by the parties to maintain family assets between separation
        in October 1999 and February 2001 when the first interim child and spousal
        maintenance order was made, a period of 16 months.  It is difficult to
        calculate the discrepancy in the amounts of payments made by the parties
        to maintain family assets with any precision, from a review of the evidence,
        but I am satisfied that to not make an adjustment would result in unfairness
        to Mrs. T.  I have in mind the mortgage payments, property taxes, house
        and life insurance premiums and the like paid by Mrs. T. during this period.  Counsel
        should be able to agree on these amounts and the necessary credit which
        will result.  Otherwise I direct that this issue be referred to the Registrar
      for hearing and for recommendation to the court.



[44] Mr. T. created a line of credit with Hong
        Kong Bank which has an outstanding balance approximating $10,000 which
        I understand to be a debt incurred by him after separation which was
      used to cover his business expenses and that will be his responsibility.  The
        remaining debts described in the Scott Schedule are debts incurred after
        separation except for some portion of the debt which was incurred by Mrs.
        T. to maintain family assets which I have already referred to.  I will
        leave it to the parties to factor in those amounts to determine the net
        obligation by way of compensation payment from Mr. T. to equalize the value
        of family assets in the possession of the parties pursuant to the formula
        in these reasons for judgment.  There may be other miscellaneous assets
        that require to be factored in and I will leave it to counsel to do that
        calculation.  There is also of course the issue of the chattels which
      has been referred to the Registrar for recommendation to the court.







[3]

On September
      18, 2002, counsel appeared before
        a registrar to settle the term of the order relating to these two paragraphs.  Counsel
        were unable to agree, and the registrar was unable to give effect to this
        portion of the reasons for judgment.  On October 9, 2002, counsel made
        submissions by way of telephone conference for the purpose of settling
        the order with
        respect to this aspect of the judgment.  After oral argument counsel
      submitted written submissions.

[4]

On October
      25, 2002, Mr. Justice Hunter rendered
        an addendum to his reasons for judgment.  He stated at para. 7 of the
      addendum:

[7] I have concluded that it is not necessary
        that there be an accounting between the parties concerning payments made
        by each on the mortgage, for property taxes and for house insurance and
        life insurance and the like between the date of separation in October
      1999, and the date of the first interim child and spousal maintenance order
      which
        occurred in February of 2001  the 16 month period.  I had wrongly concluded
        that Mrs. T. had made significantly greater payments on these items than
        had Mr. T.  This was clearly a misapprehension of the evidence.  Mrs. T.
        income was less than $6,500.00 a year and Mr. T. income exceeded $130,000.00
        in that time frame.  Mrs. T.s payments on the mortgage and for property
        taxes, and for premiums on house and life insurance, for that time frame,
        was minimal by contrast with his.  During the marriage Mr. T. had paid
        most, if not all, of the household expenses including these items.  In
        the circumstances I found against Mrs. T. on her claim for reapportionment
      of family assets.







[5]

On November
      22, 2002, the appellant filed a
        notice of appeal.  While the notice of appeal sets out grounds relating
        only to the reasons articulated in the addendum, counsel wishes to amend
        the notice of appeal to include grounds relating to the judgment rendered
      in July.

[6]

Section
      14(1)(a) of the
Court of Appeal Act
provides:

Only one notice of appeal need be filed where
        only one order will be entered, even though further reasons for judgment
      may be published and further terms pronounced.





[7]

Relying
        on
Burlington Northern Railroad Co. v. Baseline Industries Ltd.
(1992)
        20 C.P.C. (3d) 90, counsel for the respondent takes the position, which
        is not disputed by the appellant, that the time to appeal began to run
        on July 15, 2002, rather than on October 25, 2002, the day the addendum
        was released.  Counsel agree that the appeal from the July 15, reasons
      is therefore out of time.  These reasons are premised on that proposition.

[8]

In
        determining whether to extend the time within which to file a notice of
        appeal the chambers judge should consider the five part test set out in
Davies
      v. Canadian Imperial Bank of Commerce
(1987) 15 B.C.L.R. (2d) 256:

1.   Was there a
bona fide
intention
      to appeal?

2.   When
      were the respondents informed of the intention?

3.   Would
      the respondents be unduly prejudiced by an extension?

4.   Is
      there merit in the appeal?

5.   Is
      it in the interest of justice that an extension be granted?





[9]

Counsel
        for the respondent debated the prejudice to the respondent and the merits
        of the appeal, but his central concern was the formation of the intention
        to appeal and the lack of
bona fides
in deciding to appeal after
        October 25.  Counsel for the appellant conceded that the decision to appeal
        the judgment was not made within 30 days of the filing of first set of
        reasons for judgment, but rather, after the addendum was released.  Counsel
        for the appellant submitted that the addendum changed the complexion of
        the appellants award.  The appellant was prepared to live with what
        she perceived to be the result of the first set of reasons, she was not
        content
      with the result after release of the second set.

[10]

Counsel for the respondent questioned the
bona fides
of
      the reason offered for formulating the intention to appeal sometime after
      October
        25.  He submitted that the addendum merely clarified the original order
        made by the trial judge.  He submitted that the appellant knew all along
        that she had not paid out more money to maintain the family assets than
        the respondent, and that in the end, she would have understood that no
        credit was therefore owing to her in spite of the wording of paragraph
      41 of the July 15 reasons.

[11]

Counsel
      for the appellant disagreed.  She said that paragraph 41 was
        open to a different interpretation.  She understood the trial judge to
        say that because of the imbalance in the financial situation between
        the appellant and the respondent after their separation (the appellant
        was
        forced to go into debt to keep up with her obligations), that the appellant
        should be entitled to a credit for the full amount of money she spent
        preserving the family assets even though the respondent had also contributed
        to that
      maintenance and had paid more towards it than she had.

[12]

I
      accept that the appellant genuinely understood that the amount of her award
      had been reduced by the October 25 reasons and that this brought
        forward her other complaints about the judgment which she now wishes
      to appeal.  I am satisfied that she has explained her failure to form an
      intention to appeal after October 25.

[13]

I
      will not go into any detail with respect to the other factors.  I
        am satisfied that the respondent is not unduly prejudiced by the delay.  I
        am not persuaded that the appeal is bound to fail.  Considering all of
        the factors the question becomes whether it is in the interest of justice
        to grant the extension.  Balancing the factors as between the parties,
        I am of the view that it is in the interest of justice to grant an extension
      of time.

[14]

The
      appellant will have leave to file an amended notice of appeal provided
      that it is filed in the Registry and served by 4
      p.m. Friday, January 10.



_________________________________
The Honourable Madam Justice Ryan





correction:  M
ay
        20, 2003



The date February 7, 2003 should be January
      7, 2003





CORRECTION:  April
        1, 2003



1) In para. 3, line 3 the word was should
      be changed to were.



2) In para. 12, line 4 on pg. 7 the word
      under should be deleted.




