






Citation:


Rotzetter
v.
Rotzetter



Date:  20030108











2003 BCCA 12


Docket:  CA029677








COURT OF APPEAL 
          FOR BRITISH COLUMBIA




BETWEEN:




MICHELLE MARIE ROTZETTER




RESPONDENT

(PLAINTIFF)






AND:




YVAN MARCEL ROTZETTER




APPELLANT

(DEFENDANT)














Before:


The Honourable Madam Justice Southin







(In Chambers)














Y. M. Rotzetter


In person




H. Hyslop, Q.C.


Counsel for the Respondent






Place and Date of Hearing:




Vancouver, British 
          Columbia








11th 
          December, 2002






Place and Date of Judgment:


Vancouver, British 
          Columbia








8th 
          January, 2003










Reasons for Judgment of the 
    Honourable Madam Justice Southin:





[1]


This is an application, in the words 
    of the notice of motion:

... 
    for an order pursuant to Clause 10(2)(d) of the Court of Appeal Act that there 
    be an extension of an additional 65 days for the filing of the Factum, Transcript 
    Extract Book and the partial transcripts that were missed from the current 
    filing date of October 31, 2002.

Pursuant to the order before the HONOURABLE MADAM JUSTICE Huddart 
    in chambers on
August 21, 2002.


[2]


The appeal is from a judgment of Blair 
    J. pronounced the 9th April, 2002, 2002 BCCA 522, in a matrimonial cause.

At issue are the terms relating to the residence of the five children 
    of the marriage, now ages 4-14, and the division of family assets.

On the 21st August, 2002, Huddart J.A. extended 
    the time for filing the appeal books and transcripts to 31st October, 2002.


[3]


The applicant failed to meet the deadline.

He explains why thus:

I 
    am representing myself and am unaware of court process and procedures.

I misunderstood Madam Justice Huddart and the 
    Appeal Court Rules in the matter of filing transcripts.

I was under the impression that I only needed 
    to order, and file, only the transcripts that I was going to refer to in my 
    appeal.

This is why there are only 
    partial transcripts filed to date.

I 
    only became aware of my mistake on November 26, 2002, during a phone conference 
    with Hope Hyslop and the Court of Appeal.

I apologize to the courts and Ms. Hyslop for my confusion in this matter.

Attached as Exhibit A, is a fax from Reportex with an approximate date 
    when the transcripts will be done.

I 
    have completed my Factum and Extract Books for the filing date of 30 days 
    after the Appeal Book and would like to file them.

I am aware that if I file my Factum, this would not give the respondent 
    adequate time to prepare their Factum because of the missing transcripts.

I would like to sign my consent for the respondent 
    to have an extension for filing their Factum, for an appropriate amount of 
    time, as Ms. Hyslop feels they need, after they receive the missing transcripts.


[4]


The letter referred to in his affidavit 
    says, in part:

a)

You have ordered appeal transcript from us for 
    all portions listed in the previous appeal book index as "not transcribed".

My support
staff have
estimated those "not transcribed" portions 
    of transcript to total 772 pages, or $4,914.95.

b)

Your bank, the Kamloops Credit Union, has confirmed 
    a bank transfer of $4,000 was activated today, November 28, 2002.

The remaining $1,000 will be transferred on Tuesday, December 2, 2002.


[5]


From the material which is before me 
    and especially the reasons for judgment of Mr. Justice Blair, I infer that 
    the parties to this litigation are not particularly well to do.

The money being spent on this appeal might better 
    have been saved for the children's education.


[6]


Ordinarily, when a litigant who has 
    brought his appeal timeously, as the applicant did here, has difficulty complying 
    with the rules and orders of this Court as to the time for filing the necessary 
    papers, the Court will grant the necessary extension.

A litigant is not lightly to be deprived of 
    his right of appeal because he does not understand what to him may be the 
    arcane procedures of this Court.


[7]


But, on all applications to extend 
    time, the overriding consideration must be the interests of justice.

Justice is not a concept which lends itself to scientific analysis.

Among the considerations is the effect 
    on the parties of litigation.

The applicant, an intelligent man, is enjoying 
    representing himself in this appeal.

What 
    the respondent thinks of it all, I do not know, but it was plain to me that 
    Ms. Hyslop, her counsel, considers this appeal an exercise in irritating futility.


[8]


About the applicant, the learned judge 
    said:

[9]
Neither
Mr. Rotzetter nor Mrs. Rotzetter appear 
    to have considered fully the effect on their children by involving them in 
    their matrimonial difficulties.

Social 
    worker Sandra Wilcox worked with the family and noted that the parents had 
    broken most of the rules on divorced parenting, resulting in emotional distress 
    to the children.

I consider it likely, 
    as suggested by Ms. Fuchs, that the children have to some extent been emotionally 
    scarred by the parents' actions.

Both 
    Mr. Rotzetter and Mrs. Rotzetter deserve criticism for exposing their anger 
    to their children but I find that Mr. Rotzetter, when telling the couple's 
    two older children about Mrs. Rotzetter's conduct, was less than honest about 
    his own conduct.

[10]
His
lack of forthrightness about his own conduct 
    is particularly difficult and I am concerned that he seems incapable of appreciating 
    the damage his behaviour has created by undermining the children's relationship 
    with their mother.

I further conclude 
    that Mr. Rotzetter's many and various complaints about Mrs. Rotzetter are 
    based less on reality and more on the bitterness he feels towards her.


[9]


In her reasons [unreported], Huddart 
    J.A. said in part:

[7]

I think it is fair to say this will be an exceedingly 
    difficult appeal for Mr. Rotzetter with or without counsel.

I advised him during the hearing this morning 
    that the Supreme Court of Canada has made it very clear that Courts of Appeal 
    should intervene sparingly in any custody order that has been made by a trial 
    judge.

This is so because, as the applicant 
    recognizes, he can always return to the trial court to ask for a variation 
    of an order.

The trial court is in 
    a better position than this Court to deal with the matter on current evidence.

This Court has difficulty in doing that when it finds a trial judge 
    has made a mistake because circumstances regarding children have a tendency 
    to change frequently.


[10]


Having read the reasons for judgment, 
    I cannot see any rational possibility that this Court would interfere with 
    the judgment of Blair J. even if the Supreme Court of Canada had authorized 
    us to interfere whenever we thought it right to do so.


[11]


It is in the interests of the parties 
    to this appeal and their children that this litigation should end.

In so remarking, I appreciate that the applicant 
    may well consider that what is in his best interests is for him to say and 
    not for me.

It is also, however, in 
    the best interests of society that a pointless appeal shall not further take 
    up the time of this Court which has many litigants knocking at its doors with 
    appeals of merit.


[12]


The application is refused.













THE HONOURABLE MADAM JUSTICE SOUTHIN




