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Posted Friday, July 12, 2024:
Bye v. Bye,
2024 BCCA 264
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2024/07/12
Court of Appeal
This is an appeal from the dismissal of an application seeking declarations that the parties’ two children ceased to be children of the marriage upon reaching the age of majority, termination of child support obligations and reimbursement of child support paid. The dismissal turned on the chambers judge’s conclusion that an existing child support order did not become “spent” upon the children reaching the age of majority and her conclusion that both remained children of the marriage under the Divorce Act. The judge also declined to vary the amount of child support as she did not read that application to seek a variation of the existing order.
The appellant asserts error by the judge in failing to find that the existing order was spent once the children reached the age of majority, concluding that both children remained children of the marriage after reaching the age of majority, and failing to vary the amount of child support.
Held: Appeal dismissed. The judge made no error in concluding that the existing child support order was not automatically spent upon the children reaching the age of majority. Further, she made no palpable and overriding errors in determining that both children remained children of the marriage. Finally, her view of the scope of the appellant’s application is entitled to deference and should not be interfered with.
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R. v. Hurley,
2024 BCCA 259
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2024/07/12
Court of Appeal
The appellant appeals a sentence of two years’ imprisonment for sexual assault on the grounds that the sentencing judge failed to appreciate how his mental health disorders and childhood trauma lessened his moral culpability for the offence. The appellant argues that a conditional sentence is the more proportionate and reasonable sentence and the sentencing judge erred by imposing a custodial sentence.
Held: Leave to appeal granted and appeal dismissed. The judge committed no reviewable error in concluding that the appellant’s mental health condition and childhood trauma had no impact on his moral culpability for the offence. The appellant has not demonstrated that the sentence imposed, which falls at the lower end of the applicable range, is unfit.
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Posted Thursday, July 11, 2024:
Hui v. The Owners, Strata Plan BCS3702,
2024 BCCA 262
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2024/07/11
Court of Appeal
Case concerns an order dismissing an application to strike proceedings as an abuse of process under R. 9 5(1)(d) of the Supreme Court Civil Rules. The appellant submits that the petition below was a collateral attack on a decision of the Registrar of Land Titles, who found no error on a strata plan, and that the chambers judge erred in not dismissing the petition as an abuse of process.
Held: Appeal dismissed. The jurisdiction of the Registrar and the court differs and is not co extensive. The Registrar’s jurisdiction is bound by the statutory language empowering him, while the court’s is broader. While the Registrar had the jurisdiction to determine that the strata plan did not contain an error within the meaning of the statutory mandate, only the court has the jurisdiction to adjudicate issues rooted in, for example, the equitable doctrine of mistake. Hence, the underlying petition is not a collateral attack on the Registrar’s decision, because it is grounded in a different jurisdiction and engages different legal tests than the proceedings before the Registrar.
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Posted Tuesday, July 9, 2024:
Bonneau v. British Columbia,
2024 BCCA 260
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2024/06/18
Court of Appeal
The respondent seeks to stay the appellants’ appeal of a mid-trial decision until final judgment in the underlying trial is made.
Held: Application granted. Allowing the appeal to proceed would amount to litigating in slices and would not resolve the proceedings below. Further, the prejudice to the appellants of staying the appeal is minimal since the prejudice they rely on relates to the judge’s reasoning, rather than the order made. The judge’s stated reasons do not prevent the appellants from seeking the remedy they wish to pursue in closing submissions at trial which have yet to be made.
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Mundy v. Chernichen,
2024 BCCA 261
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2024/06/21
Court of Appeal
The appellants are the driver and owner of a vehicle that rear ended the respondent’s car. They challenge the award of damages for loss of future earning capacity, contending the judge failed to consider positive contingencies.
Held: Appeal dismissed. Although the judge did not expressly identify specific contingencies, it is evident from the live issues at trial and the record that she did consider them. There is no basis on which this Court could interfere with the judge’s assessment of damages for loss of future earning capacity.
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