Man taking notes on case studies of past appeal decisions

Appeal Decisions

Garry K. Thomas has appeared as lead counsel in many important decisions in BC Family law, including trial and appeal successes involving custody, income, support, division of assets and estate litigation. Several cases below demonstrate nuanced use of the Rules of Court to obtain significant results for clients. Our Appeal decisions include:

SIEBEL v DAVIS 2017 BCSC 847 (Garry K. Thomas)
This was a successful appeal of a Provincial Court Order that dismissed our client’s application for unsupervised contact with his son, among other issues, following a three-day hearing. The appeal judge accepted our argument that the trial judge made palpable and overriding errors, such as finding that there was hostility between the parties that would justify a continuation of supervised contact, when this was not the case. The appeal judge also accepted our argument that the trial judge committed an error by focusing too heavily on how often our client was able to see his son – which was somewhat limited due to travel costs – rather than the quality of the visits, as summarized in the contact supervisor’s notes. In the result, the appeal judge set aside the order for supervised contact and our client was awarded his costs. Our client now exercises contact without the need for supervision.

REID v REID 2017 BCCA 73 (Garry K. Thomas)
This appeal involved whether the failure of one party to provide financial information and documents during the negotiation phase of a separation agreement and at the time that the agreement was signed would have the impact of allowing the non-informed party to revisit the support provisions with respect to child and spousal support. Further, the successful appeal also included a detailed review of the terms of the particular agreement, especially where child support was concerned. The BCCA ruled that as the appellant was due significant child support arrears by reason of the fact that the respondent had earned several million dollars from the sale of a company that he operated during the marriage and which company he “purchased” from our client as part of the post separation agreement process. The specific issue on appeal was whether the terms of the parties’ separation agreement obligated the payor to disclose increased Guideline income and adjust his child support payments accordingly. The trial judge found that the terms of the separation agreement precluded adjustment for changes in income. On appeal, we successfully argued that the trial judge erred in his interpretation. The Court of Appeal ordered the payor to pay increased child support for the particular and significant income year. The appellant was also awarded both her appeal costs and the cost of the trial, which were very significant in value.

KOPP v KOPP 2012 BCCA 140 (Garry K. Thomas)
This case involved two issues. The first issue was the interpretation to be given to two poorly drafted provisions regarding deferred asset payment clauses. The second issue involved the extent to which our client’s income was higher than his T-4 Line 150 income by reason of the benefits and potentially available pre-corporate tax earned income. The law allows courts to potentially add to a business owner’s income over and above his T-4 income all or a part of what are referred to as pre-corporate tax earnings of the business for support purposes. The business owner has the obligation to provide evidence as to why all or some of the pre-corporate tax earnings are not “available” to the business owner. In this case the Chamber’s Trial Judge had found that our client’s income by reason of his operation through a solely owned business was much higher than his Line 150 income as set out in his personal tax return. At the appeal, based on the evidence that indicated that much of the pre-corporate tax earnings and benefits were not available to the client, the Court of Appeal significantly reduced the income amount imputed to him. On the other issue, the three judge panel split 2-1 with the dissenting Justice writing a very compelling rebuttal.

PARMINTER v PARMINTER 2011 BCCA 347 (Garry K. Thomas)
This was a factually involved case. The parties had separated years before either one of them went to court for a divorce or to otherwise deal with a division of assets. At separation, the parties mostly on their own, and at times with legal assistance, attempted to negotiate a separation agreement. They were unable to come to agreement. However, our client had transferred to his former wife the matrimonial home but he received no consideration for the transfer. Later, after a number of years, he applied to receive his pension. He received his pension for a number of years before his wife commenced legal action. At trial, the judge held that our client had to compensate the former wife for all the years he had received his pension even the years before any court action had been commenced. That order but for a successful appeal would have cost the client significant funds. On appeal, the Court of Appeal agreed with us that the pension payments could not in law be shared before the initial section 57 date, which in this case was the date of divorce. That result saved the client his retirement funds. The appeal deals with what are referred to as compensatory orders in the Court of Appeal and when such orders are and are not available. The result was of significant benefit to the client.

REIS v BUCHOLTZ 2010 BCCA 115 (Garry K. Thomas)
The Court of Appeal upheld the trial decision. The decision also confirmed that retroactive spousal support in B.C. is premised on the same principles as retroactive child support, as declared by a previous Supreme Court of Canada case.

L. v D. 
2010 BCCA 545 (Garry K. Thomas)
This appeal involved a detailed appreciation of procedural rights to a party who failed to show or attend court when they had intended to do so. In this case, the appellant had failed to attend a scheduled court proceeding but thereafter had made efforts to contact the court to provide a remedy. The court at the level of the Registrar’s decided against the client and she then appealed to a Supreme Court Judge. That judge affirmed the registrar’s decision. It was at that stage that this office was retained to run the appeal. On behalf of the Appellant we successfully appealed a decision made by the Chief Justice of the British Columbia Supreme Court on a Chamber’s Application.

FRITH v FRITH 2008 BCCA 2 (Garry K. Thomas)
In this case we successfully opposed an appeal of a decision made in Chambers where the other party was found in contempt of court for wrongly denying our client access to his two daughters.

MIRZA v MIRZA 2007 BCCA 106 (Garry K. Thomas)
The Court of appeal overturned a trial decision concerning what parties could accomplish on their own through a separation agreement where they dealt with the division assets. Part of the decision allows parties to treat such things as a pension not solely as an asset to be divided but an income stream. The decision also shows that courts are concerned about fairness and related tax issues.

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