Boleak v. Boleak, 2000 BCCA 631

• Judge: Esson, Huddart and Mackenzie, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 16, 2000
• Jurisdiction: British Columbia
• Citations: 2000 BCCA 631;(2000), 148 B.C.A.C. 138 (CA)

Boleak v. Boleak (2000), 148 B.C.A.C. 138 (CA);

    243 W.A.C. 138

MLB headnote and full text

Temp. Cite: [2001] B.C.A.C. TBEd. MR.015

Sandra Betty Boleak (plaintiff/appellant) v. Deatter Boleak (defendant/respondent)

(CA026580 and CA027659; 2000 BCCA 631)

Indexed As: Boleak v. Boleak

British Columbia Court of Appeal

Esson, Huddart and Mackenzie, JJ.A.

November 16, 2000.

Summary:

A mother sought a divorce and joined a matrimonial property claim under the Family Relations Act. She was granted interim custody of the three children. The father had daytime access only to the youngest child.

The trial judge granted custody of the two older children, who refused to see the father following separation, to the mother, but gave sole custody of the youngest child to the father. The mother appealed (Appeal No. 1), and applied for a stay of the custody order pending the appeal.

The trial judge dismissed the application. The mother then applied under s. 18(1) of the Court of Appeal Act for a stay of the custody order.

The British Columbia Court of Appeal, per Rowles, J.A., in a decision reported in 133 B.C.A.C. 169; 217 W.A.C. 169, dismissed the application for want of jurisdiction. The parties then negotiated a custody agreement through mediation. This arrangement broke down, prompting the mother to apply to vary the custody decision, i.e., she sought interim custody of the youngest child and that the father surrender custody of the youngest child to her.

The British Columbia Supreme Court dismissed the mother's application. The mother appealed (Appeal No. 2).

The British Columbia Court of Appeal dismissed Appeal No. 1 and allowed Appeal No. 2 to the extent of remitting the application to vary for consideration on the merits.

Family Law - Topic 1891

Custody and access - Considerations in awarding custody - Conduct of parents - A couple had three children, ages 15, 14 and five in November 1999 - The mother had interim custody since early 1997, while the father had specified access to the youngest child - The mother had resided for two years prior to November 1997 with the maternal grandmother - Together, these women deliberately turned the older children against their father to the point they would have nothing to do with him - A trial judge awarded custody of the youngest child to the father, to prevent the mother from similarly alienating him from her - The British Columbia Court of Appeal affirmed this decision - See paragraphs 2 to 6.

Family Law - Topic 1947

Custody and access - Variation of custody and access rights - Changed circumstances - General - A couple had three children, ages 15, 14 and five in November 1999 - The mother had interim custody since early 1997, while the father had specified access to the youngest child - The mother and maternal grandmother deliberately turned the older children against their father - A judge awarded custody of the youngest child to the father, to prevent the mother from similarly alienating her - Subsequently, the parties mediated a settlement - The British Columbia Court of Appeal held that the agreement was a change in the child's circumstances which effectively set aside the existing custody order for 10 months, in a joint effort by the parties to resolve their differences - The change justified a variation of custody application.

Cases Noticed:

Poole v. Poole (1999), 123 B.C.A.C. 272; 201 W.A.C. 272 (C.A.), refd to. [para. 5].

D.P. v. C.S. (1993), 159 N.R. 241; 58 Q.A.C. 1; 108 D.L.R.(4th) 287, refd to. [para. 5].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241; [1996] 5 W.W.R. 457; 19 R.F.L.(4th) 177; 134 D.L.R.(4th) 321, refd to. [para. 18].

Counsel:

Steven Mansfield, for the appellant;

Michael Welsh, for the respondent.

These appeals were heard before Esson, Huddart and Mackenzie, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on November 16, 2000, when the following decision was delivered orally for the court by Esson, J.A.