Summaries Sunday: OnPoint Legal Research

• Author: Administrator
• Date: December 30, 2018

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

Clancy v. Clancy, 2018 BCCA 448

AREAS OF LAW: Summary judgment; Family law; Formal order; Want of jurisdiction

~The Court of Appeal has no jurisdiction to hear an appeal in which the appellant takes no issue with the order made in the court below, but contends that it should have been granted for reasons other than those expressed in the judgment.~

BACKGROUND

The Appellant, John Clancy, and the Respondent, Anne-Marie Clancy, signed a separation agreement on March 9, 2011. Both parties were represented by counsel. In the Agreement the Appellant represented that he had no ownership or beneficial interest in a company owned by his new spouse, Serpil Clancy. On the basis of that representation, and his representation as to income, the Respondent released her claims to compensatory and non-compensatory spousal support including arrears. In December 2012, the Respondent commenced a notice of family claim, seeking child and spousal support, an unspecified interest in family assets, an order that the Agreement be declared null and void or varied, and a variety of ancillary orders, all on the basis that the Appellant had misrepresented his ownership and beneficial interest in the new spouse’s company as well as his income arising from it. The Appellant filed a response to family claim, denying the alleged misrepresentation. In June 2013 he filed an application seeking to dismiss the proceeding. He claimed that the issues arising in the action were res judicata, that the Respondent was estopped from pursuing the issues, and that the filing of the action was an abuse of process. He sought that the action be dismissed pursuant to Rule 11-2(1) of the Supreme Court Family Rules, and he sought special costs against the Respondent. In the alternative, he sought that the action be dismissed on a summary trial application pursuant to Rule 11-3 with costs against the Respondent. The application proceeded on November 8, 2016. Both parties’ counsel agreed that the matter was suitable to be decided at a summary trial. The Respondent sought declarations that the representation made by the Appellant was untrue and that the Appellant withheld material facts and documents at the time the Agreement was signed. The judge said, in disposing of the application, “I grant the declarations sought by the [Respondent], dismiss the [Appellant’s] summary trial application, and award costs to the [Respondent].” However, the formal order simply provided “The [Appellant’s] application to dismiss the within action is dismissed.” There was a dispute as to what the terms of the final order were, and on December 12, 2017, the Registrar determined that the order was only for dismissal of the summary trial application and no declaratory relief had been granted. The BC Supreme Court dismissed the Respondent’s appeal of the Registrar’s decision. The Appellant appealed the dismissal of his summary trial application.

APPELLATE DECISION

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