Campbell v. Campbell, (2013) 336 B.C.A.C. 89 (CA)

JudgeNewbury, Hall and Garson, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateDecember 04, 2012
JurisdictionBritish Columbia
Citations(2013), 336 B.C.A.C. 89 (CA);2013 BCCA 109

Campbell v. Campbell (2013), 336 B.C.A.C. 89 (CA);

    574 W.A.C. 89

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. MR.029

Petra Johanna Campbell (respondent/plaintiff) v. Bradford William Dwayne Campbell (appellant/defendant)

(CA039524; 2013 BCCA 109)

Indexed As: Campbell v. Campbell

British Columbia Court of Appeal

Newbury, Hall and Garson, JJ.A.

March 13, 2013.

Summary:

The parties entered into a marriage agreement in July 2005 that provided for the unequal division of the value of their family residence (purchased primarily by the husband) in the event they separated within five years from the date they began to cohabitate or were married. In that event, the wife would receive only her contribution to the purchase price ($60,000) plus 50% of any increase in value. If the marriage or cohabitation lasted more than five years, the division of proceeds of sale would be equal. The parties married in August 2005 and separated in February 2010. They had resided together for two periods of time; the first period was from 1998 to July 2002, and the second period was from July 2005, until their separation in February 2010. The central question at trial was whether the parties had been cohabiting or married for more or less than five years by the time they separated.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 1491, found that the combined period of cohabitation and marriage exceeded five years and, consequently that the wife was entitled to half the value of the home. The court found that even if they had not been cohabiting for five years, the agreement was unfair. On either basis, the court awarded the wife 50% of the value of the family residence. The husband appealed.

The British Columbia Court of Appeal held that the trial judge erred in his interpretation of the marriage agreement. The court concluded that the marriage agreement operated to limit the wife's entitlement to the return of her investment, namely $60,000, plus $10,000 in lump sum spousal support. However, the court held that the trial judge did not err in concluding that the marriage agreement was unfair as that term was used in s. 65 of the Family Relations Act. The court allowed the appeal and directed a new hearing restricted to the assessment of the appropriate reapportionment under the s. 65 claim, and consideration of spousal support, if necessary.

Family Law - Topic 855

Husband and wife - Marital property - Distribution orders - Contracting out - Grounds for attack on agreement - See paragraphs 44 to 55.

Family Law - Topic 1001

Common law, same-sex or adult interdependent relationships - What constitutes common law relationship - See paragraphs 34 to 43.

Family Law - Topic 1003

Common law relationships - Cohabits - Meaning of - See paragraphs 34 to 43.

Family Law - Topic 3206

Separation agreements, domestic contracts and marriage contracts - General - Application of law of contracts - See paragraphs 34 to 43.

Family Law - Topic 3243

Separation agreements, domestic contracts and marriage contracts - Terms - Interpretation - See paragraphs 34 to 43.

Family Law - Topic 3354

Separation agreements, domestic contracts and marriage contracts - Effect of agreement - In matrimonial property application - See paragraphs 44 to 55.

Family Law - Topic 3378

Separation agreements, domestic contracts and marriage contracts - Variation - Grounds - Unfairness - See paragraphs 44 to 55.

Family Law - Topic 3384

Separation agreements, domestic contracts and marriage contracts - Grounds for setting aside - Inequitable result or gross unfairness - See paragraphs 44 to 55.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised (incl. new theory of the case) - See paragraphs 30 to 33.

Cases Noticed:

Hartshorne v. Hartshorne, [2004] 1 S.C.R. 550; 318 N.R. 1; 194 B.C.A.C. 161; 317 W.A.C. 161; 2004 SCC 22, refd to. [para. 24].

Kopelow v. Warkentin (2005), 218 B.C.A.C. 209; 359 W.A.C. 209; 2005 BCCA 551, refd to. [para. 24].

Johnstone v. Wright (2005), 212 B.C.A.C. 131; 350 W.A.C. 131; 15 R.F.L.(6th) 200; 2005 BCCA 254, refd to. [para. 24].

Waters v. Conrod, [2005] B.C.T.C. 472; 16 R.F.L.(5th) 404; 2005 BCSC 472, affd. (2007), 240 B.C.A.C. 208; 398 W.A.C. 208; 37 R.F.L.(6th) 315; 2007 BCCA 230, refd to. [para. 24].

R. v. Vidulich (1989), 37 B.C.L.R.(2d) 391 (C.A.), refd to. [para. 30].

Pinto v. Revelstoke Mountain Resort Limited Partnership (2011), 304 B.C.A.C. 193; 513 W.A.C. 193; 18 B.C.L.R.(5th) 313; 2011 BCCA 210, refd to. [para. 33].

Athwal v. Black Top Cabs Ltd. (2012), 316 B.C.A.C. 296; 537 W.A.C. 296; 30 B.C.L.R.(5th) 17; 2012 BCCA 107, refd to. [para. 39].

269893 Alberta Ltd. v. Otter Bay Developments Ltd. et al. (2009), 266 B.C.A.C. 98; 449 W.A.C. 98; 2009 BCCA 37, refd to. [para. 41].

Smith v. Lau (2004), 204 B.C.A.C. 22; 333 W.A.C. 22; 31 B.C.L.R.(4th) 240; 2004 BCCA 443, refd to. [para. 41].

Hyman v. Hyman, [1929] A.C. 601, refd to. [para. 41].

Zimmerman v. Shannon (2006), 232 B.C.A.C. 122; 385 W.A.C. 122; 34 R.F.L.(6th) 32; 2006 BCCA 499, refd to. [para. 41].

Counsel:

J.C. Fairburn, for the appellant;

R.S. Tretiak, Q.C., for the respondent.

This appeal was heard on December 4, 2012, at Vancouver, B.C., before Newbury, Hall and Garson, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Garson, J.A., on March 13, 2013.

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10 practice notes
  • Sandy v. Sandy, 2018 BCCA 182
    • Canada
    • Court of Appeal (British Columbia)
    • May 9, 2018
    ...Hynes, [2005] O.J. No. 2661 at para. 76 (Ont. C.A.). … [35] Zimmerman has been referred to by this Court once, in Campbell v. Campbell, 2013 BCCA 109, although not on the issue of whether an order dismissing or terminating support can be [36] Based on the jurisprudence in this province to d......
  • 2023 BCSC 664,
    • Canada
    • January 1, 2023
    ...to by the claimant, Coupar v. Roh, 2014 BCSC 1392, Campbell v. Campbell, 2011 BCSC 1491 [ Campbell SC], rev'd on other grounds 2013 BCCA 109, and Thompson v. Floyd, 2001 BCCA 78, are cases where the parties resided together for a time and in a manner to establish the spousal relationsh......
  • Gershkovitch v. Bailey,
    • Canada
    • Supreme Court of British Columbia (Canada)
    • October 22, 2021
    ...by the respondent to the appellant under the agreement from $450,000 to $525,000. [288]    In Campbell v. Campbell, 2013 BCCA 109, the marriage agreement provided for the applicant to share in any increase in value of the family home. As a result of unique circumstances of th......
  • A.J.L. v. J.C.,
    • Canada
    • Supreme Court of British Columbia (Canada)
    • April 26, 2023
    ...to by the claimant, Coupar v. Roh, 2014 BCSC 1392, Campbell v. Campbell, 2011 BCSC 1491 [Campbell SC], rev’d on other grounds 2013 BCCA 109, and Thompson v. Floyd, 2001 BCCA 78, are cases where the parties resided together for a time and in a manner to establish the spousal relations......
  • Request a trial to view additional results
10 cases
  • Sandy v. Sandy, 2018 BCCA 182
    • Canada
    • Court of Appeal (British Columbia)
    • May 9, 2018
    ...Hynes, [2005] O.J. No. 2661 at para. 76 (Ont. C.A.). … [35] Zimmerman has been referred to by this Court once, in Campbell v. Campbell, 2013 BCCA 109, although not on the issue of whether an order dismissing or terminating support can be [36] Based on the jurisprudence in this province to d......
  • Gershkovitch v. Bailey,
    • Canada
    • Supreme Court of British Columbia (Canada)
    • October 22, 2021
    ...by the respondent to the appellant under the agreement from $450,000 to $525,000. [288]    In Campbell v. Campbell, 2013 BCCA 109, the marriage agreement provided for the applicant to share in any increase in value of the family home. As a result of unique circumstances of th......
  • A.J.L. v. J.C.,
    • Canada
    • Supreme Court of British Columbia (Canada)
    • April 26, 2023
    ...to by the claimant, Coupar v. Roh, 2014 BCSC 1392, Campbell v. Campbell, 2011 BCSC 1491 [Campbell SC], rev’d on other grounds 2013 BCCA 109, and Thompson v. Floyd, 2001 BCCA 78, are cases where the parties resided together for a time and in a manner to establish the spousal relations......
  • 2023 BCSC 664,
    • Canada
    • January 1, 2023
    ...to by the claimant, Coupar v. Roh, 2014 BCSC 1392, Campbell v. Campbell, 2011 BCSC 1491 [ Campbell SC], rev'd on other grounds 2013 BCCA 109, and Thompson v. Floyd, 2001 BCCA 78, are cases where the parties resided together for a time and in a manner to establish the spousal relationsh......
  • Request a trial to view additional results

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