Vancouver interim family appeals face a serious hurdle before being allowed to proceed. Our family rules discourage Vancouver interim family appeals and encourage prompt steps towards having a trial judge decide the family law, child parenting and financial issues. Leave is required for any Vancouver interim family appeals.
The reason for this is that family matters that drag on only increase distress and costs to the parties. Our top rated family lawyers located in 4 offices across BC are ready to meet with you to help you resolve family disputes including disputes involving Vancouver interim family appeals.
In the recent BC Court of Appeal decision of Munro v. Munro the court reiterated the law that applies to Vancouver interim family appeals as follows:
[6] Mr. Munro seeks leave to appeal the retroactive interim spousal support award, the interim spousal support award, and the determination that the other issues were unsuitable for summary trial disposition. I do not understand him to contest the dismissal of his claim for retroactive child expenses, the children not being the children of the marriage when the application was made.
[7] The criteria for leave to appeal are well known. They include whether the point on appeal is of significance to the practice, whether the point raised is of significance to the action itself, whether the appeal is prima facie meritorious, whether the appeal may unduly hinder the progress of the action, and overall, whether it is in the interests of justice that leave be granted: Goldman Sachs and Co. v. Sessions, 2000 BCCA 326. In family law matters, in particular, this court has held that it is only “in the most extreme circumstances that leave to appeal will be granted in respect of interim orders”: Hyggen v. Hyggen, 1986 Carswell B.C. 506.
[8] In considering the merits of an appeal, it is important to remember that the deferential standard of review applies to discretionary decisions.
[9] I will deal with the application for leave in three pieces. First is the application for leave to appeal the decision to remit the matter for a trial rather than dealing with it on the summary basis as sought by Mr. Munro. In reaching his decision the judge said:
[2] Except for three aspects arising from the applications, they are not, in my respectful opinion, suitable for summary determination. There are gaps in the evidence concerning incomes, disposition of family property and alleged family debts. There is also contradictory evidence central to the issues that require determination of credibility.
[3] I do not accept Mr. Munro’s submission that proportionality dictates that these applications should be heard summarily. Proportionality does not supplant the need for judges to make determinations based on evidence. It does not supplant gaps in the evidence that prevent findings of fact necessary to determine the issues on a summary basis. Nor should proportionality be used to deny justice to the parties, which in my opinion would be the result in this case if I try to decide the issues based on speculation.
[10] Whether to conduct a summary trial is a matter within the discretion of the judge before whom the application is brought. In my view, it is highly unlikely that a division of this court would say that this judge was wrong in declining to consider the undetermined issues on a summary basis given those comments I have just referred to – that he should have had a summary trial even though he considered the evidence was not ripe for it and that there were issues of credibility not suited to summary trial.
[11] In other words, I consider the proposed appeal of the refusal to decide certain issues by a summary trial lacks the merit necessary for leave to appeal. Having said that, however, I would observe that it remains open to Mr. Munro to apply to the judge for leave to bring another application under Rule 11-3 of the Supreme Court Family Rules for something short of the full trial now contemplated.
[12] What then of the monetary decisions of the judge? In respect to the retroactive aspect of the award, it is said on behalf of Mr. Munro that the judge failed to consider factors normally reviewed in determining whether retroactive spousal support should be awarded. In particular, he complains that the judge did not consider the prospect of hardship on his part, and he refers to Ms. Munro’s delay in bringing her application.
[13] While the judge did not advert to hardship in his reasons awarding the retroactive sum, he did deal with the question of hardship in his decision on the application for a stay of the support order pending the leave application. There he observed that payment of the retroactive spousal support was ordered from the funds held in trust and concluded there was, thus, no immediate hardship to Mr. Munro as a result of the order. As to possible overpayment, there remains available some of the proceeds from sale, and Ms. Munro’s entitlement to a share of Mr. Munro’s pension as sources of funds to settle off any such possible overpayment.
[14] I do not consider that this issue of retroactive spousal support is one that this court is likely to interfere with: the order made was interim, there is no immediate hardship to Mr. Munro as the sum is covered by monies held in trust that have not been to the use of either party these many years, and Mr. Munro will not be without a source of repayment in the event Ms. Munro is found not to be entitled to all of a portion of the retroactive support ordered on this interim basis.
[15] I have reached the same conclusion in respect to the award for ongoing spousal support. Although Mr. Munro complains that the judge has found entitlement to spousal support, that finding is interim only based on the incomplete record before the judge, and as such is subject to the more complete process yet to come and the final determination that will be made. It may be that a trial judge, reviewing the entire matter, including perhaps the issue of the long standing status quo in respect to both child and spousal support, and including the efforts made by Ms. Munro to become economically self-sufficient, will find Ms. Munro is not entitled to ongoing support in the amount ordered. If that be so, appropriate adjustments can be made as part of the final order in the case.
[16] In other words, considering this court’s approach to interim orders in family litigation, I do not view either of the financial orders as having the requisite degree of merit for the granting of leave to appeal.
[17] Mr. Munro has referred to the need for proportionality and efficiency in the court process. While it is true that efficiency and proportionality inform the application of the summary trial process, these values do not trump the need for either sufficient evidence from which to find the facts, or an adequate process to determine credibility.
[18] On the other hand, those same values of efficiency and proportionality are relevant to the interests of justice. In my view they weigh against an appeal in this court, given my view of the merits of the proposed appeal and the need for the parties to still engage in the Supreme Court of British Columbia to obtain a final order.
[19] In my view, the interests of justice do no favour leave to appeal. The application is dismissed.
Our Vancouver interim family appeals lawyers are ready to assist you whether you want to proceed or defend against a Vancouver interim family appeals case. We will explain how the trial judge can correct interim orders made on incomplete evidence. Call us at 1-877-602-9900. We have 4 offices across Bc in Vancouver, South Surrey, Fort St John and Kelowna.
