Boleak v. Boleak, (1999) 133 B.C.A.C. 169 (CA)

• Judge: Rowles, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 30, 1999
• Jurisdiction: British Columbia
• Citations: (1999), 133 B.C.A.C. 169 (CA);1999 BCCA 776

Boleak v. Boleak (1999), 133 B.C.A.C. 169 (CA);

    217 W.A.C. 169

MLB headnote and full text

Temp. Cite: [2000] B.C.A.C. TBEd. MR.027

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

(CA026580; 1999 BCCA 776)

Indexed As: Boleak v. Boleak

British Columbia Court of Appeal

Rowles, J.A.

December 30, 1999.

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 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., dismissed the application for want of jurisdiction.

Family Law - Topic 1918

Custody and access - Appeals - Stay pend­ing appeal - A mother appealed a custody order under the Divorce Act - She applied under s. 18(1) of the Court of Appeal Act to stay the custody order pending her appeal - Supreme Court Rule 60(34) pro­vided that if a custody order was appealed, the order remained in force until the determination of the appeal - The British Co­lumbia Court of Appeal, per Rowles, J.A., held that the court lacked jurisdiction to stay a custody order made under the Divorce Act in the face of rule 60(34) - The court held that rule 60(34), being a specific provision governing cus­tody orders pending appeal, prevailed over the general provision in s. 18(1) of the Court of Appeal Act.

Family Law - Topic 4172

Divorce - Practice - Appeals - Stay of proceeding pending appeal - [See Family Law - Topic 1918 ].

Statutes - Topic 6255

Operation and effect - Effect on earlier statutes - Contrariety or conflict between statutes - General and special statutes - [See Family Law - Topic 1918 ].

Cases Noticed:

Sawan v. Tearoe (1993), 81 B.C.L.R.(2d) 346 (C.A.), refd to. [para. 12].

Robitaille and Robitaille Enterprises Ltd. v. Vancouver Hockey Club Ltd. (1979), 13 B.C.L.R. 309 (S.C.), refd to. [para. 21].

Smith v. Frick (1984), 5 D.L.R.(4th) 574 (B.C.C.A.), refd to. [para. 23].

Shute v. Shute (1996), 84 B.C.A.C. 3; 137 W.A.C. 3 (C.A.), refd to. [para. 25].

Fright v. Fright (1994), 55 B.C.A.C. 42; 90 W.A.C. 42; 2 B.C.L.R.(3d) 64 (C.A.), refd to. [para. 25].

Ciachurski v. Ciachurski (1994), 47 B.C.A.C. 208; 76 W.A.C. 208; 2 B.C.L.R.(3d) 37 (C.A.), refd to. [para. 25].

McPhail v. McPhail (1999), 132 B.C.A.C. 40; 215 W.A.C. 40 (C.A.), refd to. [para. 25].

Statutes Noticed:

Court of Appeal Act, R.S.B.C. 1996, c. 77, sect. 18(1) [para. 17].

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 21(1), sect. 21(6), sect. 25(1), sect. 25(2), sect. 25(3) [para. 19].

Rules of Court (B.C.), Supreme Court Rules, rule 60(34) [para. 1].

Authors and Works Noticed:

Dreidger, Elmer A., Construction of Statutes (3rd Ed. 1994), p. 186 [para. 22].

Counsel:

D.A. Zack and D. Hart, for the appellant;

D.M. King, for the respondent, by telephone.

This application was heard in Chambers by Rowles, J.A., of the British Columbia Court of Appeal, who delivered the following oral decision on December 30, 1999.