Holmes v. Matkovich, 2008 YKCA 10

• Judge: Newbury, Kirkpatrick and Tysoe, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: May 28, 2008
• Jurisdiction: Yukon
• Citations: 2008 YKCA 10;(2008), 258 B.C.A.C. 86 (YukCA)

Holmes v. Matkovich (2008), 258 B.C.A.C. 86 (YukCA);

    434 W.A.C. 86

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. JL.045

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

(07-YU579; 2008 YKCA 10)

Indexed As: Holmes v. Matkovich

Yukon Court of Appeal

Newbury, Kirkpatrick and Tysoe, JJ.A.

July 17, 2008.

Summary:

The parties lived together since 1988, were married in 2000, and separated in 2005. They had one child, born in 1990. Matkovich failed to comply with three court orders to deliver documents relating to his income and assets. The chambers judge, in a decision reported 2007 YKSC 5, ordered that his Answer and Counter-Petition be struck, and that the matter proceed to trial "on an uncontested basis". Neither Matkovich nor anyone retained to represent him appeared at trial. Matkovich retained counsel and appealed certain aspects of the trial judge's order, contending that the property division was highly skewed in Holmes' favour, and that the spousal support was excessive. He sought to adduce "fresh evidence".

The Yukon Court of Appeal allowed the appeal to the extent of staying the property aspects of the trial judge's order, and remitted them for rehearing, on condition that if by October 15, 2008, Matkovich had not paid Holmes her special costs of the trial and appeal and set the matters down for rehearing, Holmes could apply to the court to have the trial judge's order reinstated with effect from the original date thereof. The child and spousal support orders remained unaffected.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - Matkovich failed to comply with three court orders to deliver documents relating to his income and assets - The chambers judge ordered that his Answer and Counter-Petition be struck and that the matter proceed to trial "on an uncontested basis" - Neither Matkovich nor anyone retained to represent him appeared at trial - The trial judge ordered, inter alia, that Holmes have 100% interest in their family home - Matkovich retained counsel and appealed, submitting that the re-apportionment of the family home amounted to an injustice, and that the trial judge approached the issue on an incorrect footing by asking whether Holmes should receive the entire interest in the farm, rather than whether an equal division would be inequitable, under s. 13 of the Family Property and Support Act - Holmes submitted that the trial judge rightly considered that ss. 13(e) and (f) of the Act were relevant to her situation, and that given her poor health and the fact that her trust fund would run out in 2016, an equal division would have been unfair (Narayan v. Narayan (2006) (BCCA)) - The Yukon Court of Appeal agreed that the trial judge's approach to s.13 was wrongly stated, and distinguished Narayan, as Matkovich had not dissipated assets - The court allowed the appeal to the extent of staying the property aspects of the trial judge's order, and remitted them for rehearing, on conditions - See paragraphs 13 to 15.

Family Law - Topic 886

Husband and wife - Marital property - Considerations in making distribution orders - Conduct (incl. lack of disclosure) - Matkovich ignored three court orders to deliver documents relating to his income and assets - The chambers judge ordered that his Answer and Counter-Petition be struck and that the matter proceed to trial "on an uncontested basis" - Neither Matkovich nor anyone retained to represent him appeared at trial - Matkovich appealed certain aspects of the trial judgment - He sought to adduce fresh evidence that would, if credible, explain his failure to make proper financial disclosure and his failure to appear at trial - In response, Holmes contended that it would be "extremely prejudicial and manifestly unfair" if Matkovich were permitted to adduce evidence that could have been adduced at trial, and characterized the proffered evidence as "highly suspect" - The Yukon Court of Appeal concluded that if what Matkovich deposed were true, "then it would appear that his conduct was not of the most egregious kind that warrants an order under Rule 2(5)", and that "it would be unjust for him now to be subject to the order made in his absence" - If the court were to decide the appeal on the evidence as presented, and without findings of fact having been made regarding the new evidence, it would be proceeding on "shaky ground indeed" - The court stayed those aspects of the trial judge's order dealing with the division of assets and remitted them for re-trial, on conditions - See paragraphs 16 to 23.

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance awards - Awards - Effect of division of matrimonial property - Matkovich ignored three court orders to deliver documents relating to his income and assets - The chambers judge ordered that his Answer and Counter-Petition be struck and that the matter proceed to trial "on an uncontested basis" - Neither Matkovich nor anyone retained to represent him appeared at trial - Matkovich appealed certain aspects of the trial judgment, contending that $4,000 per month spousal support to Holmes was excessive - He submitted that the trial judge erred in computing his income with reference to rental income he received from his D-8 Caterpillar and contract income from his 50% shareholding in a mining company, given that he had been ordered to buy out Holmes' interests in those assets - He argued that it would be "double dipping" within the meaning of Boston v. Boston (2001) (SCC), applying similar reasoning outside the pension context - The Yukon Court of Appeal dismissed his appeal of the spousal support order - The court concluded that the "double recovery" argument did not apply, noting that a pension was different from most other income-producing assets - Matkovich retained the D-8 Cat and his shares in the company as capital assets which he could sell or transfer - He could also continue to earn income from those assets without liquidating them in the way a pension was liquidated - See paragraphs 24 to 27.

Family Law - Topic 4129

Divorce - Practice - General - Loss of right to defend or to further participate in proceedings - Matkovich failed to comply with three court orders requiring him to deliver documents and information relating to his income and assets - The trial judge ordered that his Answer and Counter-Petition be struck and that the matter proceed to trial "on an uncontested basis" - In so ruling, the judge stated that "It would be unfair to allow Mr. Matkovich to appear at trial to justify his failure to disclose and advance arguments at trial to undermine Ms. Holmes' evidence ..." - The trial proceeded and neither Matkovich nor anyone retained to represent him appeared - Matkovich retained counsel and appealed certain aspects of the trial judgment, contending that the property division was highly skewed in Holmes' favour, and that the spousal support was excessive - He sought to adduce "fresh evidence" - The Yukon Court of Appeal stayed the property aspects of the trial judge's order, and remitted them for rehearing, on condition that if by October 15, 2008, Matkovich did not pay Holmes her special costs of the trial and appeal and set the matters down for rehearing, Holmes could apply to the court to have the trial judge's order reinstated with effect from the original date thereof - The child and spousal support orders remained unaffected.

Family Law - Topic 4130

Divorce - Practice - General - Rehearing - [See Family Law - Topic 4129 ].

Family Law - Topic 4171

Divorce - Practice - Appeals - Admission of new evidence - Matkovich ignored three court orders to deliver documents relating to his income and assets - The chambers judge ordered that his Answer and Counter-Petition be struck and that the matter proceed to trial "on an uncontested basis" - Neither Matkovich nor anyone retained to represent him appeared at trial - Matkovich appealed certain aspects of the trial judgment, contending that $4,000 per month spousal support was excessive - He submitted, on the basis of new affidavit material he sought to file, that the order was currently manifestly unjust because of changes in his income and family situation, including that his employment was terminated subsequent to the trial; that he was not currently earning income from any source; that his current wife had given birth to a child; that the child of his marriage to Holmes was living with his family; that he was unable to pay the spousal support ordered and was in arrears of $30,000 - The Yukon Court of Appeal dismissed the application to adduce the fresh evidence and dismissed his appeal of the spousal support order - "It is not our function to vary orders based on post-trial developments. This evidence of 'change in circumstance' may be brought forward in Supreme Court as part of an application to vary the existing order" - See paragraphs 28 to 29.

Family Law - Topic 4171

Divorce - Practice - Appeals - Admission of new evidence - [See Family Law - Topic 886 and Family Law - Topic 4129 ].

Cases Noticed:

Olstead v. Olstead (1999), 124 B.C.A.C. 315; 203 W.A.C. 315; 1999 BCCA 211, refd to. [para. 13].

S.B.M. v. N.M. (2003), 183 B.C.A.C. 76; 301 W.A.C. 76; 14 B.C.L.R.(4th) 90; 2003 BCCA 300, refd to. [para. 13].

Narayan v. Narayan (2006), 233 B.C.A.C. 261; 386 W.A.C. 261; 62 B.C.L.R.(4th) 116; 2006 BCCA 561, dist. [para. 14].

Appel v. Dominion of Canada General Insurance Co. (1997), 95 B.C.A.C. 122; 154 W.A.C. 122; 39 B.C.L.R.(3d) 113 (C.A.), refd to. [para. 19].

Homer Estate et al. v. Eurocopter S.A. et al. (2003), 180 B.C.A.C. 316; 297 W.A.C. 316; 12 B.C.L.R.(4th) 321; 2003 BCCA 229, refd to. [para. 20].

Boston v. Boston, [2001] 2 S.C.R. 413; 271 N.R. 248; 149 O.A.C. 50, refd to. [para. 24].

Thompson v. Thompson, [2006] B.C.T.C. Uned. 57; 2006 BCSC 130, refd to. [para. 26].

Bedi v. Bedi, [2004] O.T.C. 425; 13 R.F.L.(6th) 40 (Sup. Ct.), refd to. [para. 26].

Poirier v. Poirier (2005), 19 R.F.L.(6th) 197 (Ont. Sup. Ct.), refd to. [para. 26].

Litton v. Litton (2006), 232 B.C.A.C. 100; 385 W.A.C. 100; 2006 BCCA 494, refd to. [para. 26].

Statutes Noticed:

Family Property and Support Act, R.S.Y. 2002, c. 83, sect. 13 [para. 7].

Counsel:

P.R. Albi, for the appellant;

D. Hoffman, for the respondent.

This appeal was heard at Whitehorse, Yukon, on May 28, 2008, by Newbury, Kirkpatrick and Tysoe, JJ.A., of the Yukon Court of Appeal. The judgment of the court was delivered by Newbury, J.A., in Vancouver, British Columbia, on July 17, 2008.