BC Family Appeals From Masters Orders have 2 differing tests depending on what type of order was made in Chambers. A stricter test of the disappointed party proving the Master’s decision was “clearly wrong” is applied if the matter is clearly interim without a large impact on the trial to come and a different test applies if the order is final or critical to the final decision that has to be made on the issue. The second test involves a full rehearing of the argument or a “redo”. It is a tricky area and having a lawyer who knows how to categorize the Master’s decision that is being appealed in a way that favours your position is critical. Vancouver Family Appeal lawyers Lorne MacLean, QC and Fraser MacLean explain a new case that provides a succinct and helpful summary of the law dealing with Family Appeals From Masters Orders. Meet with us across BC and in Calgary.
Family Appeals From Masters Orders 1 877 602 9900
In JB v JP 2018 BCSC 2521 a master had ordered staged increased parenting time for the father ending up with a shared parenting scheme. The mother appealed on the basis there was evidence of family violence that had led to charges which were stayed. The Court decided the proper Appeal test, in this case, was a rehearing of the dispute in front of the Supreme Court judge, given the Master’s decision did have a significant impact on the final decision regarding parenting time.
Master Gave Less Weight To Family Violence
[44] In these interim applications, the court must balance competing interests based on affidavit material drafted by lawyers and paralegals. Limiting parenting time based on allegations of family violence, allegations that may not ultimately be substantiated or impact a party’s ability to parent, may cause great prejudice. At the same time, the legislation clearly lays out family violence concerns that courts must consider and those concerns dictate that the safety of children must take priority when the court is balancing these interests. Section 37 is unequivocal that a child’s best interests are the only consideration for the court.
Family Appeals From Masters Orders Standard of Review 1 877 602 9900
The Family Appeals From Masters Orders law is as follows:
[15] The parties agree that Kalafchi v. Yao, 2015 BCCA 524, is the leading authority respecting the standard of review for a master’s order. Purely interlocutory orders are only to be reviewed if they are “clearly wrong,” whereas a rehearing is appropriate if the orders are final or raise questions vital to the final issue: para. 3.
[16] Kalafchi confirmed that there is no strict rule as to whether masters’ orders involving parenting time and custody are purely interlocutory or if they raise questions vital to the final issue: paras. 15-19.
[17] Neither counsel specifically addressed their position as to whether I am to apply the “clearly wrong” standard or whether a re-hearing is appropriate.
[18] The father contends that the master’s order is interim, not final, and can always be changed at trial. However, I did not interpret his argument to be that the clearly wrong standard was applicable.
[19] In my view, the master’s order determined issues that are central to this case and vital to the “final issue”. The issue of whether to order a s. 211 report; whether to order equal parenting time after September 1, 2017; and whether to order week-long summer parenting time are all interim matters that will have a significant bearing on the parenting issues at trial.
[20] The parties disagreed as to the status quo at the time of the master’s order. The mother argues that the father was limited to supervised parenting time of short duration. The father argues that there was no status quo until the master’s May 10, 2017 order because all other orders were “emergency” or “interim” orders pending a full hearing of the parenting time issues.
[21] In my view, no matter what the reason, at the time of the master’s May 10, 2017 reasons, the father’s parenting time was limited. I accept that the mother was the primary caregiver prior to the separation because she was on maternity leave. For the purposes of this appeal, I find that the mother was the primary caregiver until the May 10, 2017 order, which changed the status quoto equal parenting time between both parties as of September 2, 2017.
[22] Given my view that the orders are “vital to the final issue,” a rehearing is appropriate.
In the end, result the father’s parenting time was reduced below shared parenting several times a week and a section 211 report on parenting capacity with an additional focus on whether family violence had occurred and its im[pact on the children was ordered.
If you choose to appeal the decision of a master, you must file a Family Form F98 within 14 days after the order or decision was made at a cost of $80.
The filing fee for a Notice of Appeal from Master, Registrar or Special Referee is $80.00 as set out in Appendix C to both sets of rules.
If you have a Family Appeals From Masters Orders question call us quickly at 1 877 602 9900 as a strict time limit applies to bring the appeal.
