Hughes v. Hughes

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Chiasson, D. Smith and Groberman, JJ.A.
• Citation: 2014 BCCA 196,(2014), 355 B.C.A.C. 289 (CA)
• Date: 15 January 2014
• Subject Matter: FAMILY LAW

Hughes v. Hughes (2014), 355 B.C.A.C. 289 (CA);

    607 W.A.C. 289

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. MY.035

Sibylla Giulia Hughes (appellant/respondent) v. Calum James Hughes (respondent/claimant)

(CA041052; 2014 BCCA 196)

Indexed As: Hughes v. Hughes

British Columbia Court of Appeal

Chiasson, D. Smith and Groberman, JJ.A.

May 27, 2014.

Summary:

The mother moved to Italy with the parties' child after the father commenced divorce proceedings. The mother was found in contempt of orders, including to return the child to British Columbia. The divorce action proceeded. The trial judge awarded sole custody of the child to the father, but ordered him to continue to pay child support until the mother returned the child to his custody. The father unilaterally ceased paying child support. The mother applied to enforce his obligation. The father cross-applied to cancel arrears of child support and to rescind the child support order.

The British Columbia Supreme Court, in a decision reported at [2013] B.C.T.C. Uned. 1031, allowed the father's cross-application, cancelling arrears of child support and rescinding the child support order. The mother appealed. The father applied for an order requiring the mother to post security for the costs of the appeal. The International Institute for Child Rights and Development sought an order granting it leave to intervene in the appeal.

The British Columbia Court of Appeal, per D. Smith, J.A., in a decision reported at (2013), 347 B.C.A.C. 142; 593 W.A.C. 142, dismissed both the intervenor application and the father's application for security for costs.

The British Columbia Court of Appeal, Chiasson, J.A., dissenting, dismissed the mother's appeal. The mother's conduct in refusing to return the child to the father's custody precluded the child from obtaining support from the father. The mother's refusal to return the child also constituted a material change in circumstances that formed the basis of the father's application to cancel arrears and rescind the support order. The mother could not rely on her de facto custody of the child in Italy in accordance with a Hague Convention non-return order and an order granting her legal custody of the child in that jurisdiction to ground her entitlement to ongoing child support in the amount awarded her under a transitional provision for child support in the divorce order in this jurisdiction.

Family Law - Topic 2162

Custody and access - Enforcement of orders - International conventions - See paragraphs 92 to 114.

Family Law - Topic 4006.2

Divorce - Corollary relief - Maintenance and awards - To children - Parent's obligation - See paragraphs 92 to 114.

Family Law - Topic 4018

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of - Jurisdiction - See paragraphs 92 to 114.

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Changed circumstances - See paragraphs 92 to 114.

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance (incl. interest) - See paragraphs 92 to 114.

Cases Noticed:

Turecki v. Turecki (1989), 35 B.C.L.R.(2d) 51 (C.A.), refd to. [para. 31].

Glase v. Glase (2009), 274 B.C.A.C. 1; 463 W.A.C. 1; 2009 BCCA 321, refd to. [para. 38].

Larkin v. Glase - see Glase v. Glase.

Hughes v. Hughes, [2010] B.C.T.C. Uned. 420; 2010 BCSC 420, refd to. [para. 56].

Thomson v. Thomson, [1994] 3 S.C.R. 551; 173 N.R. 83; 97 Man.R.(2d) 81; 79 W.A.C. 81, refd to. [para. 94].

Kubera v. Kubera (2010), 284 B.C.A.C. 224; 481 W.A.C. 224; 3 B.C.L.R.(5th) 121; 2010 BCCA 118, refd to. [para. 94].

Beals v. Saldanha et al., [2003] 3 S.C.R. 416; 314 N.R. 209; 182 O.A.C. 201; 2003 SCC 72, refd to. [para. 97].

Counsel:

C.E. Hunter and H.E. Cochran, for the appellant;

W.C. Shields, for the respondent.

This appeal was heard at Vancouver, B.C., on January 15, 2014, by Chiasson, D. Smith and Groberman, JJ.A., of the British Columbia Court of Appeal. On May 27, 2014, the Court's judgment was delivered with the following opinions:

Chiasson, J.A., dissenting - see paragraphs 1 to 91;

D. Smith, J.A. (Groberman, J.A., concurring) - see paragraphs 92 to 114.