Holmes v. Matkovich,

JurisdictionYukon
JudgeGower
Neutral Citation2008 YKCA 2
CourtCourt of Appeal (Yukon Territory)
Date04 February 2008
Citation(2008), 251 B.C.A.C. 149 (YukCA),2008 YKCA 2,251 BCAC 149,(2008), 251 BCAC 149 (YukCA),251 B.C.A.C. 149

Holmes v. Matkovich (2008), 251 B.C.A.C. 149 (YukCA);

    420 W.A.C. 149

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. MR.010

Kathleen Helen Holmes (respondent/petitioner) v. Vernon Cyril Matkovich (appellant/respondent)

(C.A. 06-YU575; 07-YU579; 2008 YKCA 2)

Indexed As: Holmes v. Matkovich

Yukon Court of Appeal

Gower, J.(ex officio)

February 4, 2008.

Summary:

The parties divorced. The wife petitioned for relief in relation to division of family assets, spousal support, child support and special costs. The wife obtained an order compelling the husband to disclose detailed financial information. The husband remained in breach of the order. The wife applied for an order that the husband's answer and counter-petition be struck and that the matter proceed to trial on an uncontested basis.

The Yukon Supreme Court, in a decision reported at [2007] Yukon Cases (SC) 5, allowed the application. The trial proceeded on an uncontested basis.

The Yukon Supreme Court, in a decision reported at [2007] Yukon Cases (SC) 15, determined the issues. The husband appealed both the interlocutory judgment on February 7, 2007, and the judgment on the merits on April 27, 2007. The wife now applied to dismiss the appeals for non-compliance with the Court of Appeal Rules, 2005, where the husband had not yet filed the Appeal Record, the transcript, the Appeal Book or the factum within the timelines required by the Rules in either appeal. The husband filed a cross-application, seeking to extend the time for filing the Appeal Record, which was the first of the filings required by the Rules after the Notice of Appeal.

The Yukon Court of Appeal made the following orders: 1. The wife's application to dismiss the judgment appeal was dismissed; 2. The wife's application to dismiss the interlocutory appeal was granted; 3. The husband's application seeking leave to file his Appeal Record was granted and the Appeal Record had to be filed within 14 days of this order; 4. The husband had to file his factum and an Appeal Book within 30 days after filing the Appeal Record; 5. Any failure by the husband to meet these time lines would result in his appeal being automatically dismissed, unless a justice or a panel ordered otherwise.

Practice - Topic 8862

Appeals - Quashing or dismissal of appeals - Grounds for - The parties divorced - The wife petitioned for relief in relation to division of family assets, spousal support, child support and special costs - The wife obtained an order compelling the husband to disclose detailed financial information - The husband remained in breach of the order - The wife obtained an order that the husband's answer and counter-petition be struck and that the matter proceed to trial on an uncontested basis - The trial judge determined the issues - The husband appealed on April 27, 2007 - The wife now applied to dismiss the appeal for non-compliance with the Court of Appeal Rules, 2005, where the husband had not yet filed the Appeal Record, the transcript, the Appeal Book or the factum within the time lines required by the Rules - The husband filed a cross-application, seeking to extend the time for filing the Appeal Record, which was the first of the filings required by the Rules after the Notice of Appeal - The Yukon Court of Appeal dismissed the wife’s application and allowed the husband’s application - The husband met the test for an extension of time to file the Appeal Record - Firstly, there was a good faith intention to appeal - He filed his appeal within the prescribed time lines - The missed filings were due to a misunderstanding that the wife wanted to negotiate - The application to extend the time for filing was filed before the application for dismissal of the appeal - Secondly, the wife was aware of the husband’s intention to appeal - Thirdly, while there was clearly prejudice to the wife as a result of the delay, the existence of prejudice was not determinative of the matter - Fourthly, while the husband had an uphill battle in relation to his grounds of appeal, it was not clear that the appeal was bound to fail - Finally, it would not be contrary to the interest of justice to let the appeal proceed - See paragraphs 25 to 41.

Practice - Topic 8862

Appeals - Quashing or dismissal of appeals - Grounds for - The parties divorced - The wife petitioned for relief in relation to division of family assets, spousal support, child support and special costs - The wife obtained an order compelling the husband to disclose detailed financial information - The husband remained in breach of the order - The wife obtained an order that the husband's answer and counter-petition be struck and that the matter proceed to trial on an uncontested basis - The husband appealed on February 7, 2007 - The wife now applied to dismiss the appeal for non-compliance with the Court of Appeal Rules, 2005, where the husband had not yet filed the Appeal Record, the transcript, the Appeal Book or the factum within the time lines required by the Rules - The Yukon Court of Appeal allowed the wife’s application - Nothing had been filed since the notice of appeal - There was no application for an extension of time - There was nothing to substantiate an intention to appeal - The husband had not demonstrated a good faith intention to appeal - There was no way to assess the merit of the appeal because the grounds were never articulated - It would not be contrary to the interests of justice to dismiss the appeal - The husband had shown no diligence in pursuing the appeal and was the sole person to blame for the position he now found himself in - See paragraphs 42 to 52.

Practice - Topic 8863

Appeals - Quashing or dismissal of appeals - Jurisdiction - The parties divorced - The wife petitioned for relief in relation to division of family assets, spousal support, child support and special costs - The wife obtained an order compelling the husband to disclose detailed financial information - The husband remained in breach of the order - The wife obtained an order that the husband's answer and counter-petition be struck and that the matter proceed to trial on an uncontested basis - The trial judge determined the issues - The husband appealed on April 27, 2007 - The wife now applied to dismiss the appeal for non-compliance with the Court of Appeal Rules, 2005, where the husband had not yet filed the Appeal Record, the transcript, the Appeal Book or the factum within the time lines required by the Rules - The husband filed a cross-application, seeking to extend the time for filing the Appeal Record, which was the first of the filings required by the Rules after the Notice of Appeal - The Yukon Court of Appeal affirmed that while it had no express power under the Yukon Court of Appeal Act or the Rules to dismiss an appeal for non-compliance with the filing time lines under the Rules, it did have such authority by reference under ss. 8 and 9 of the Court of Appeal Act (B.C.) - See paragraphs 17 to 20.

Practice - Topic 9454.1

Appeals - Factum, case on appeal or appeal book - Extension of time for filing (incl. costs) - [See first Practice - Topic 8862 ].

Cases Noticed:

Versluce Estate v. Knol, 2007 YKCA 13, refd to. [para. 17].

Mazhero v. Human Rights Commission (Yuk.), 2002 YKCA 5, refd to. [para. 21].

Davies v. Canadian Imperial Bank of Commerce (1987), 15 B.C.L.R.(2d) 256 (C.A.), refd to. [para. 22].

Wilson et al. v. Newcomb et al. (1998), 111 B.C.A.C. 239; 181 W.A.C. 239 (C.A.), refd to. [para. 22].

Verlaan v. Von Deichmann et al. (2006), 230 B.C.A.C. 90; 380 W.A.C. 90; 2006 BCCA 389, refd to. [para. 23].

Hydro Fuels Inc. et al. v. Moran et al. (1993), 25 B.C.A.C. 139; 43 W.A.C. 139 (C.A.), refd to. [para. 24].

Greither v. Greither, [2005] B.C.A.C. Uned. 115; 2005 BCCA 339, refd to. [para. 36].

Leskun v. Leskun, [2006] 1 S.C.R. 920; 349 N.R. 158; 226 B.C.A.C. 1; 373 W.A.C. 1; 2006 SCC 25, refd to. [para. 40].

Ngo v. South Pacific Development Ltd. et al. (2006), 224 B.C.A.C. 293; 370 W.A.C. 293; 2006 BCCA 182, refd to. [para. 48].

P.B. v. R.J.P., 2007 YKSC 59, refd to. [para. 49].

Counsel:

Debbie Hoffman, for the respondent;

Sharleen Dumont, for the appellant.

These applications were heard by Gower, J.(ex officio), of the Yukon Court of Appeal, who delivered the following reasons for judgment on February 4, 2008.

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3 practice notes
  • Perren v. Lalari, (2009) 280 B.C.A.C. 197 (CA)
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • 9 Diciembre 2009
    ...15]. Hydro Fuels Inc. et al. v. Moran et al. (1993), 25 B.C.A.C. 139; 43 W.A.C. 139 (C.A.), refd to. [para. 15]. Holmes v. Matkovich (2008), 251 B.C.A.C. 149; 420 W.A.C. 149; 2008 YKCA 2, refd to. [para. Statutes Noticed: Court of Appeal Act, R.S.B.C. 1996, c. 77, sect. 10(2) [para. 9]. Cou......
  • R. v. Carlick, 2018 YKCA 5
    • Canada
    • Court of Appeal (Yukon Territory)
    • 11 Mayo 2018
    ...to granting an extension of time are found in Davies v. C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 at 260 (C.A.): see Holmes v. Matkovich, 2008 YKCA 2 at para. 22; C.S. v. S.N., 2008 YKCA 11 at para. 7. These factors apply equally to the criminal context: R. v. Kereliuk, 2007 YKCA 2 at para. 2. ......
  • Holmes v. Matkovich, 2008 YKCA 10
    • Canada
    • Yukon Court of Appeal (Yukon Territory)
    • 28 Mayo 2008
    ...order of January 8, 2007 but failed to keep that appeal "on track", in the words of Mr. Justice Gower at para. 52 of reasons indexed as 2008 YKCA 2. In the course of those reasons, Gower, J.A., also noted that Veale, J., had not specified which sub-rule he was relying on as authority for hi......
3 cases
  • Perren v. Lalari, (2009) 280 B.C.A.C. 197 (CA)
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • 9 Diciembre 2009
    ...15]. Hydro Fuels Inc. et al. v. Moran et al. (1993), 25 B.C.A.C. 139; 43 W.A.C. 139 (C.A.), refd to. [para. 15]. Holmes v. Matkovich (2008), 251 B.C.A.C. 149; 420 W.A.C. 149; 2008 YKCA 2, refd to. [para. Statutes Noticed: Court of Appeal Act, R.S.B.C. 1996, c. 77, sect. 10(2) [para. 9]. Cou......
  • R. v. Carlick, 2018 YKCA 5
    • Canada
    • Court of Appeal (Yukon Territory)
    • 11 Mayo 2018
    ...to granting an extension of time are found in Davies v. C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 at 260 (C.A.): see Holmes v. Matkovich, 2008 YKCA 2 at para. 22; C.S. v. S.N., 2008 YKCA 11 at para. 7. These factors apply equally to the criminal context: R. v. Kereliuk, 2007 YKCA 2 at para. 2. ......
  • Holmes v. Matkovich, 2008 YKCA 10
    • Canada
    • Yukon Court of Appeal (Yukon Territory)
    • 28 Mayo 2008
    ...order of January 8, 2007 but failed to keep that appeal "on track", in the words of Mr. Justice Gower at para. 52 of reasons indexed as 2008 YKCA 2. In the course of those reasons, Gower, J.A., also noted that Veale, J., had not specified which sub-rule he was relying on as authority for hi......

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