Christopher v. Zimmerman, 2000 BCCA 532

• Judge: Hollinrake, Ryan and Saunders, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 29, 2000
• Jurisdiction: British Columbia
• Citations: 2000 BCCA 532;(2000), 144 B.C.A.C. 152 (CA)

Christopher v. Zimmerman (2000), 144 B.C.A.C. 152 (CA);

    236 W.A.C. 152

MLB headnote and full text

Temp. Cite: [2001] B.C.A.C. TBEd. JA.003

Karin Christopher (plaintiff/appellant) v. Robert I. Zimmerman aka Macarthur Zim (defendant/respondent)

(CA026805; 2000 BCCA 532)

Indexed As: Christopher v. Zimmerman

British Columbia Court of Appeal

Hollinrake, Ryan and Saunders, JJ.A.

September 29, 2000.

Summary:

The plaintiff and the defendant, an unmarried couple, separated. The plaintiff sued the defendant, claiming in constructive trust an equitable interest in the defendant's moveable assets and spousal support under the Family Relations Act. The defendant applied under Rule 18A for an order dis­missing the action or, alternatively, for an order that the proper law to be applied to these proceedings was the law of the State of Hawaii, where the parties once resided. The defendant also applied to have the claim for spousal support dismissed.

The British Columbia Supreme Court, in a decision reported in 27 B.C.T.C. 397, ref­used to dismiss the plaintiff's action or to dismiss her spousal support claim. The court held that claims to moveable property were to be governed by the "lex domicilii" or the law of the matrimonial domicile absent some express or implied agreement to the contrary. The plaintiff had not established that the defendant had changed his domicile of choice to British Columbia and, accordingly, the court had to decide the issues of trust on the basis of the law of Hawaii. The plaintiff appealed.

The British Columbia Court of Appeal allowed the appeal and set aside the Supreme Court order. The court remitted the issue to the Supreme Court to be tried on the basis that the proper law was to be decided on the rules relating to unjust enrichment.

Conflict of Laws - Topic 2068

Family law - Property - Choice of law - General - An unmarried couple lived in four U.S. states and in B.C. before separ­ating - The female plaintiff sued in B.C. for a constructive trust over the male de­fendant's moveable assets - The defend­ant claimed that the proper law to be applied was the law of the matrimonial domicile (Hawaii), absent an express or implied agreement to the contrary (which he alleged was absent in this case) - The trial judge agreed - The British Columbia Court of Appeal held that the issue of choice of law was to be determined not on the basis of the rules relating to marital property but on those relating to claims in equity (unjust enrichment) - The court remitted the matter to trial.

Conflict of Laws - Topic 4883

Property - Personalty - Choice of law - [See Conflict of Laws - Topic 2068 ].

Conflict of Laws - Topic 4981

Property - Trusts - General - [See Con­flict of Laws - Topic 2068 ].

Family Law - Topic 866.1

Husband and wife - Marital property - Distribution orders - Application of foreign law - [See Conflict of Laws - Topic 2068 ].

Cases Noticed:

Tezcan v. Tezcan (1992), 8 B.C.A.C. 276; 17 W.A.C. 276; 62 B.C.L.R.(2d) 344 (C.A.), refd to. [para. 9].

Peter v. Beblow, [1993] 1 S.C.R 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81; [1993] 3 W.W.R. 337; 101 D.L.R.(4th) 621; 77 B.C.L.R.(2d) 1; 48 E.T.R. 1; 44 R.F.L.(3d) 329, refd to. [para. 11].

Authors and Works Noticed:

Castel, J.G., Canadian Conflict of Laws (4th Ed. 1997), pp. 637, 638 [para. 15].

Dicey and Morris, Conflict of Laws (12th Ed. 1993), p. 1471 [para. 14].

Counsel:

J.S. Sheppard, for the appellant;

E. Watson, for the respondent.

This appeal was heard before Hollinrake, Ryan and Saunders, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on September 29, 2000, when the decision was delivered orally for the court and the following opinions were filed:

Saunders, J.A. - see paragraphs 1 to 18;

Hollinrake, J.A. - see paragraphs 19 and 21;

Ryan, J.A. - see paragraph 20.