Chutter v. Chutter et al., 2009 BCCA 177

JudgeRowles, Newbury and Hall, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateApril 08, 2008
JurisdictionBritish Columbia
Citations2009 BCCA 177;(2009), 269 B.C.A.C. 206 (CA)

Chutter v. Chutter (2009), 269 B.C.A.C. 206 (CA);

    453 W.A.C. 206

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. MY.019

Heather Jane Chutter (appellant/plaintiff) v. Geoffrey Paul Chutter (respondent/defendant) and Chutter Developments Ltd. (defendant)

(CA035195; 2009 BCCA 177)

Indexed As: Chutter v. Chutter et al.

British Columbia Court of Appeal

Rowles, Newbury and Hall, JJ.A.

April 23, 2009.

Summary:

A couple married in 1975, separated in 2003 and divorced in 2007. During the course of the trial, the parties agreed to a property division under the Family Relations Act, each receiving assets valued at approximately $4,000,000. The trial judge dismissed the wife's claim for spousal support. See [2007] B.C.T.C. Uned. 437. The wife appealed.

The British Columbia Court of Appeal, in a decision reported at 263 B.C.A.C. 109; 443 W.A.C. 109, allowed the appeal. Before the order was entered, the husband applied to reopen the appeal, arguing that he ought to be permitted to make further submissions based on the decision in Stein v. Stein (2008 SCC 35), which was issued after oral argument had been heard but before the Court of Appeal's reasons were released.

The British Columbia Court of Appeal dismissed the application.

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts (incl. contingent liabilities) - A couple married in 1975, separated in 2003 and divorced in 2007 - During the trial, the parties agreed to a property division - The trial judge dismissed the wife's claim for spousal support - The wife successfully appealed respecting spousal support - Before the order was entered, the husband applied to reopen the appeal, arguing that he should be permitted to make further submissions based on Stein v. Stein (2008 SCC), which was issued after oral argument had been heard but before the Court of Appeal's reasons were released - He argued that the policy of fairness espoused in Stein dictated that if the assets were divided in such a way that one spouse retained tax-free assets whereas the other received taxable assets, the court had to take the impact of the tax consequences into account in considering a spouse's "condition, means, needs and other circumstances" under s. 15.2(4) of the Divorce Act; and that in allowing the appeal and making an order for spousal support, the court did not take into account the tax liabilities associated with the assets that he retained - The British Columbia Court of Appeal dismissed the application - Unlike Stein, the parties here had determined how their assets were to be divided - The consent order dividing the assets was not appealed - On the appeal of the order dismissing the spousal support claim, the husband confirmed that the agreed division of assets had been roughly equal - There was no evidentiary foundation from which to argue that the division was unequal - See paragraphs 15 to 29.

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance awards - Effect of division of matrimonial property - [See Family Law - Topic 868.2 ].

Practice - Topic 9136

Appeals - Hearing of appeal - Rehearing or reconsideration - When available - The British Columbia Court of Appeal reviewed case authorities on applications to reopen appeals - The court stated that if an appeal had been heard on the merits and judgment had been entered, the Court of Appeal had no power to reopen the appeal - Where judgment had not been entered, the source of the court's power to reopen an appeal was its inherent jurisdiction to control its processes and prevent an injustice - See paragraphs 8 to 14.

Cases Noticed:

M.S. v. W.S. (2008), 375 N.R. 318; 255 B.C.A.C. 11; 430 W.A.C. 11; 57 R.F.L.(6th) 241; 2008 SCC 35, dist. [para. 1].

Stein v. Stein - see M.S. v. W.S.

R. v. Hamilton (E.) (1997), 98 O.A.C. 363; 33 O.R.(3d) 202; 115 C.C.C.(3d) 89 (C.A.), refd to. [para. 8].

R. v. H. (E.F.) - see R. v. Hamilton (E.).

R. v. Rhingo (L.) - see R. v. Hamilton (E.).

R. v. Garcha (J.J.) (2000), 143 B.C.A.C. 245; 235 W.A.C. 245; 2000 BCCA 550, refd to. [para. 8].

R. v. Blaker (1983), 46 B.C.L.R. 344; 6 C.C.C.(3d) 385 (C.A.), refd to. [para. 9].

Menzies v. Harlos (1989), 37 B.C.L.R.(2d) 249; 37 C.P.C.(2d) 94 (C.A.), refd to. [para. 9].

Mayer v. Mayer et al. (1993), 32 B.C.A.C. 261; 53 W.A.C. 261; 83 B.C.L.R.(2d) 87; 106 D.L.R.(4th) 353 (C.A.), refd to. [para. 9].

R. v. Hummel (D.) (2003), 182 B.C.A.C. 93; 300 W.A.C. 93; 175 C.C.C.(3d) 1; 2003 YKCA 4, refd to. [para. 9].

Doman Forest Products Ltd. v. GMAC Commercial Credit Corp.-Canada (2005), 209 B.C.A.C. 197; 345 W.A.C. 197; 7 C.P.C.(6th) 309; 2005 BCCA 111, refd to. [para. 9].

Johnson v. Laing et al. (2004), 205 B.C.A.C. 303; 337 W.A.C. 303; 248 D.L.R.(4th) 239; 2004 BCCA 642, refd to. [para. 9].

McVea v. T.B. et al. (2006), 233 B.C.A.C. 152; 386 W.A.C. 152; 51 B.C.L.R.(4th) 249; 2006 BCCA 199, refd to. [para. 9].

Toth v. Toth (1995), 64 B.C.A.C. 81; 105 W.A.C. 81; 17 R.F.L.(4th) 55; 13 B.C.L.R.(3d) 1 (C.A.), refd to. [para. 16].

Mallen v. Mallen (1992), 11 B.C.A.C. 262; 22 W.A.C. 262; 65 B.C.L.R.(2d) 241; 40 R.F.L.(3d) 114 (C.A.), refd to. [para. 23].

Pelliccia v. Pelliccia (1990), 65 D.L.R.(4th) 41; 24 R.F.L.(3d) 226 (B.C.C.A.), refd to. [para. 23].

Danish v. Danish (1981), 33 B.C.L.R. 176 (C.A.), refd to. [para. 23].

O'Bryan v. O'Bryan (1997), 97 B.C.A.C. 62; 157 W.A.C. 62; 43 B.C.L.R.(3d) 296 (C.A.), refd to. [para. 23].

Kritharis v. Kritharis (2001), 160 B.C.A.C. 87; 261 W.A.C. 87; 2001 BCCA 666, refd to. [para. 23].

M.S. v. W.S., [2005] B.C.T.C. 939; 2005 BCSC 939, refd to. [para. 24].

Rutherford v. Rutherford (1981), 127 D.L.R.(3d) 658; 30 B.C.L.R. 145 (C.A.), refd to. [para. 24].

M.S. v. W.S. (2006), 230 B.C.A.C. 100; 380 W.A.C. 100; 36 R.F.L.(6th) 13; 2006 BCCA 391, refd to. [para. 26].

Counsel:

P. Daltrop, for the appellant;

G.A. Lang, for the respondent.

An appeal in this matter was heard at Vancouver, B.C., on April 8, 2008, by Rowles, Newbury and Hall, JJ.A., of the British Columbia Court of Appeal. Rowles, J.A., delivered the court's decision on December 9, 2008. This application to reopen the appeal was heard by Rowles, Newbury and Hall, JJ.A., of the British Columbia Court of Appeal, by way of supplementary written submissions received on March 19 and 30 and April 1, 2009. Rowles, J.A., delivered the following supplementary reasons for the court on April 23, 2009.

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15 practice notes
  • Hartshorne v. Hartshorne,
    • Canada
    • Court of Appeal (British Columbia)
    • 28 January 2011
    ...or reconsider an appeal where judgment had yet to be entered - See paragraphs 4 to 5. Cases Noticed: Chutter v. Chutter et al. (2009), 269 B.C.A.C. 206; 453 W.A.C. 206; 97 B.C.L.R.(4th) 32; 2009 BCCA 177, refd to. [para. 4]. Victoria (City) v. Adams et al. (2009), 280 B.C.A.C. 237; 474 W.A.......
  • Novlesky v. Novlesky, [2009] B.C.T.C. Uned. 1328
    • Canada
    • Supreme Court of British Columbia (Canada)
    • 20 August 2009
    ...to the Supreme Court of Canada was refused, 2009 SCCA No. 41, and application for reconsideration by the Court of Appeal was refused, 2009 BCCA 177. The citations are provided in paragraph 120 of my notes of the judgment. [118] The plaintiff seeks ongoing spousal support at the midrange of ......
  • B.M.D. v. C.N.D., [2010] B.C.T.C. Uned. 1785 (SC)
    • Canada
    • Supreme Court of British Columbia (Canada)
    • 13 December 2010
    ...has been adopted by our Court of Appeal in Tedham v. Tedham, 2005 BCCA 502 and Chutter v. Chutter, 2008 BCCA 507 (reconsideration denied 2009 BCCA 177, leave to appeal refused, [2009] S.C.C.A. No. 41 (QL)). In Chutter, Rowles J.A. noted at paras. 50-51: 50 Compensatory support is intended t......
  • K.D.R.A. v. Y.J.A.A., [2014] B.C.T.C. Uned. 2310
    • Canada
    • Supreme Court of British Columbia (Canada)
    • 8 December 2014
    ...and disadvantages of the marriage and breakdown of the marriage: Chutter v. Chutter , 2008 BCCA 507 at para. 49, reconsideration denied 2009 BCCA 177, leave to appeal ref'd [2009] S.C.C.A. No. 41(QL) [ Chutter ]. This does not involve equalizing the parties' net disposable incomes, particul......
  • Request a trial to view additional results
15 cases
  • Hartshorne v. Hartshorne,
    • Canada
    • Court of Appeal (British Columbia)
    • 28 January 2011
    ...or reconsider an appeal where judgment had yet to be entered - See paragraphs 4 to 5. Cases Noticed: Chutter v. Chutter et al. (2009), 269 B.C.A.C. 206; 453 W.A.C. 206; 97 B.C.L.R.(4th) 32; 2009 BCCA 177, refd to. [para. 4]. Victoria (City) v. Adams et al. (2009), 280 B.C.A.C. 237; 474 W.A.......
  • Novlesky v. Novlesky, [2009] B.C.T.C. Uned. 1328
    • Canada
    • Supreme Court of British Columbia (Canada)
    • 20 August 2009
    ...to the Supreme Court of Canada was refused, 2009 SCCA No. 41, and application for reconsideration by the Court of Appeal was refused, 2009 BCCA 177. The citations are provided in paragraph 120 of my notes of the judgment. [118] The plaintiff seeks ongoing spousal support at the midrange of ......
  • B.M.D. v. C.N.D., [2010] B.C.T.C. Uned. 1785 (SC)
    • Canada
    • Supreme Court of British Columbia (Canada)
    • 13 December 2010
    ...has been adopted by our Court of Appeal in Tedham v. Tedham, 2005 BCCA 502 and Chutter v. Chutter, 2008 BCCA 507 (reconsideration denied 2009 BCCA 177, leave to appeal refused, [2009] S.C.C.A. No. 41 (QL)). In Chutter, Rowles J.A. noted at paras. 50-51: 50 Compensatory support is intended t......
  • K.D.R.A. v. Y.J.A.A., [2014] B.C.T.C. Uned. 2310
    • Canada
    • Supreme Court of British Columbia (Canada)
    • 8 December 2014
    ...and disadvantages of the marriage and breakdown of the marriage: Chutter v. Chutter , 2008 BCCA 507 at para. 49, reconsideration denied 2009 BCCA 177, leave to appeal ref'd [2009] S.C.C.A. No. 41(QL) [ Chutter ]. This does not involve equalizing the parties' net disposable incomes, particul......
  • Request a trial to view additional results

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