Nichol v. Nichol, (2015) 374 B.C.A.C. 19 (CA)

• Judge: Kirkpatrick, Groberman and Willcock, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 10, 2015
• Jurisdiction: British Columbia
• Citations: (2015), 374 B.C.A.C. 19 (CA);2015 BCCA 278

Nichol v. Nichol (2015), 374 B.C.A.C. 19 (CA);

    642 W.A.C. 19

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. JL.024

Kelly Angela Nichol, also known as Kelly Angela Leibach (appellant/plaintiff) v. Matthew Terry Nichol (respondent/defendant)

(CA42251; 2015 BCCA 278)

Indexed As: Nichol v. Nichol

British Columbia Court of Appeal

Kirkpatrick, Groberman and Willcock, JJ.A.

June 15, 2015.

Summary:

The plaintiff obtained a final order in an "undefended family law case" pursuant to rule 10-10 of the Supreme Court Family Rules. The final order was granted when the defendant did not file the required Response to a Notice of Family Claim within the time period provided for in the Family Rules. The final order was set aside following a successful application by the defendant in the Supreme Court on October 10, 2014. The plaintiff appealed, seeking to have the October 2014 order set aside, with costs. At issue was whether the Supreme Court had jurisdiction to set aside a final order made pursuant to rule 10-10 and whether, provided there was such jurisdiction, the judge erred in exercising her discretion to set aside the final order.

The British Columbia Court of Appeal dismissed the appeal. The Supreme Court had the jurisdiction to set aside the final order under s. 200 of the Family Law Act. Further, the Supreme Court had inherent jurisdiction to prevent miscarriages of justice. The proper procedure for setting aside a final order was by way of application in the original proceeding in which the rule 10-10 order was granted, rather than by way of a new action. Here, the Supreme Court judge made no reversible error in exercising her discretion to set aside the final order. The reason for the substantial delay in this case in bringing the response was inadvertence rather than a willful and deliberate refusal to respond.

Courts - Topic 8623

Provincial courts - British Columbia - Supreme Court - Jurisdiction - Family law - Final orders - See paragraphs 25 to 29.

Cases Noticed:

Miracle Feeds v. D. & H. Enterprises Ltd. (1979), 10 B.C.L.R. 58 (Co. Ct.), refd to. [para. 17].

Dosanjh v. Singh, [2011] B.C.A.C. Uned. 68; 2011 BCCA 179, refd to. [para. 17].

Deline v. Whittle, [2002] B.C.A.C. Uned. 195; 2002 BCCA 662, refd to. [para. 17].

R & J Siever Holdings Ltd. v. Sunridge Merritt Motel Inc. et al. (2008), 251 B.C.A.C. 237; 420 W.A.C. 237; 2008 BCCA 59, refd to. [para. 28].

Coughlin v. Kuntz, [1997] B.C.T.C. Uned. A23; 43 B.C.L.R.(3d) 360 (S.C.), refd to. [para. 30].

C.C.A. v. J.R.H. (1992), 67 B.C.L.R.(2d) 268 (C.A.), refd to. [para. 31].

British Columbia v. Ismail (2007), 235 B.C.A.C. 299; 388 W.A.C. 299; 2007 BCCA 55, refd to. [para. 37].

Director of Civil Forfeiture (B.C.) v. John Doe et al., [2010] B.C.T.C. Uned. 940; 2010 BCSC 940, refd to. [para. 37].

Cochrane v. Insurance Corp. of British Columbia (2005), 215 B.C.A.C. 170; 355 W.A.C. 170; 2005 BCCA 399, refd to. [para. 40].

Statutes Noticed:

Family Law Act, S.B.C. 2011, c. 25, sect. 1, sect. 42, sect. 200 [para. 27].

Rules of Court (B.C.), Supreme Court Family Rules, rule 10-10 [para. 1].

Supreme Court Family Rules (B.C.) - see Rules of Court (B.C.), Supreme Court Family Rules.

Counsel:

G. Crampton, for the appellant;

No one appeared on behalf of the respondent.

This appeal was heard on June 10, 2015, before Kirkpatrick, Groberman and Willcock, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered orally by Kirkpatrick, J.A., on June 15, 2015.