Law v. Cheng, 2016 BCCA 120

• Judge: MacKenzie, Willcock and Fenlon, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 29, 2016
• Jurisdiction: British Columbia
• Citations: 2016 BCCA 120;(2016), 384 B.C.A.C. 236 (CA)

Law v. Cheng (2016), 384 B.C.A.C. 236 (CA);

    663 W.A.C. 236

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. MR.029

Jeremy Kwun Hon Law (respondent/claimant) v. Annie Cheng (appellant/respondent)

(CA43113; 2016 BCCA 120)

Indexed As: Law v. Cheng

British Columbia Court of Appeal

MacKenzie, Willcock and Fenlon, JJ.A.

March 16, 2016.

Summary:

The appellant (the "mother") sought to appeal a finding contained in the recital to an August 21, 2015 order of Justice Greyell made by consent. The appellant had abandoned her appeal of the substantive parts of the order. The recital stated: "AND UPON THE COURT finding that the respondent [the mother] has willfully disobeyed paragraph 5 of the order pronounced by the Honourable Mr. Justice G.C. Weatherill on October 31, 2014 by repeatedly removing the Child from his permanent residence in the Lower Mainland of British Columbia without the written consent of the claimant [the father] and without court order, and contrary to the expressed non-consent of the claimant, the Child's joint guardian".

The British Columbia Court of Appeal held that it had no jurisdiction to entertain an appeal from a recital to an order, nor did the recital have any place in the order. As the operative parts of the order were not being appealed, there was no basis from which to bring an appeal. The notice of appeal was therefore quashed for want of jurisdiction.

Courts - Topic 8682

Provincial courts - British Columbia - Court of Appeal - Jurisdiction - General - See paragraphs 12 to 26.

Family Law - Topic 1910

Custody and access - Appeals - General - See paragraphs 12 to 26.

Practice - Topic 8987

Appeals - When appeal available - What constitutes judgment, order or decision - See paragraphs 12 to 26.

Cases Noticed:

Bishop of Victoria v. Victoria (City), [1933] 4 D.L.R. 524; [1933] 3 W.W.R. 332 (B.C.C.A.), consd. [para. 14].

British Columbia (Attorney General) v. Lindsay, [2009] B.C.A.C. Uned. 25; 2009 BCCA 159, refd to. [para. 14].

Knapp et al. v. Faro (Town) et al. (2010), 291 B.C.A.C. 224; 492 W.A.C. 224; 2010 YKCA 7, consd. [para. 14].

Warde v. Slatter et al. (2016), 383 B.C.A.C. 40; 661 W.A.C. 40; 2016 BCCA 63, refd to. [para. 14].

R. v. Louis (R.) (2014), 363 B.C.A.C. 187; 624 W.A.C. 187; 2014 BCCA 436, refd to. [para. 19].

B.D. v. British Columbia (1997), 89 B.C.A.C. 217; 145 W.A.C. 217; 30 B.C.L.R.(3d) 201 (C.A.), refd to. [para. 19].

Statutes Noticed:

Court of Appeal Act, R.S.B.C. 1996, c. 77, sect. 6, sect. 7 [para. 19].

Counsel:

G.K.M. Yu, for the appellant;

K. Shirley-Paterson and W.N. Fernandes, Articled Student, for the respondent.

This matter was heard on February 29, 2016, at Vancouver, B.C., before MacKenzie, Willcock and Fenlon, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Mackenzie, J.A., on March 16, 2016.