Waters v. Michie, (2011) 309 B.C.A.C. 305 (CA)

• Judge: Newbury, Levine and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 15, 2011
• Jurisdiction: British Columbia
• Citations: (2011), 309 B.C.A.C. 305 (CA);2011 BCCA 364

Waters v. Michie (2011), 309 B.C.A.C. 305 (CA);

    523 W.A.C. 305

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. SE.003

Jodi Lynn Waters (appellant/petitioner) v. Dawn Lanelle Michie (respondent/respondent) and James Alexander Michie (respondent/respondent)

(CA038918; 2011 BCCA 364)

Indexed As: Waters v. Michie

British Columbia Court of Appeal

Newbury, Levine and Bennett, JJ.A.

September 6, 2011.

Summary:

The plaintiff alleged that transfers of property from her former husband to his current wife (the defendants) were in violation of the Fraudulent Conveyance Act and other statutes and were made with the intention of depriving the plaintiff of child support. The defendants applied to strike the plaintiff's plea of conspiracy as disclosing no reasonable claim.

The British Columbia Supreme Court allowed the application. The plaintiff appealed.

The British Columbia Court of Appeal dismissed the appeal.

Courts - Topic 129

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Supreme Court of Canada - Obiter dictum - The plaintiff alleged that transfers of property from her former husband to his current wife were in violation of the Fraudulent Conveyance Act and other statutes and were made with the intention of depriving the plaintiff of child support - The British Columbia Court of Appeal affirmed a chambers judge's order striking the plaintiff's plea of conspiracy as disclosing no reasonable claim - The chambers judge based her decision on the principle enunciated in Frame v. Smith and Smith (S.C.C. 1987) that extending the tort of conspiracy into the family law context was not in the best interests of children - Frame did not stand for the proposition that a conspiracy claim pleaded in the family law context had to be struck, as a matter of policy, as disclosing no reasonable claim - However, the obiter comments in Frame concerning the policy reasons for not extending the tort to family law disputes were intended for guidance and should be accepted as authoritative - Thus, in considering whether the plaintiff's claim of conspiracy disclosed a reasonable claim, the court had to give authoritative weight to the policy implications that would preclude such a claim from succeeding - That was what the chambers judge did here - See paragraphs 15 to 33.

Family Law - Topic 4046

Divorce - Corollary relief - Maintenance - Enforcement - General - [See Courts - Topic 129 and second Torts - Topic 5702 ].

Practice - Topic 2230.6

Pleadings - Striking out pleadings - Grounds - Merger - The plaintiff alleged that transfers of property from her former husband to his current wife were in violation of the Fraudulent Conveyance Act and other statutes and were made with the intention of depriving the plaintiff of child support - The British Columbia Court of Appeal affirmed a chambers judge's order striking the plaintiff's plea of conspiracy as disclosing no reasonable claim - The concept of merger barred the claim - Merger precluded a claim of unlawful act conspiracy where the alleged unlawful acts were torts or other independently actionable claims that had also been pleaded, such that the conspiracy claim added nothing - See paragraphs 53 to 63.

Torts - Topic 5088

Interference with economic relations - Conspiracy - Conspiracy to defraud - [See second Torts - Topic 5702 ].

Torts - Topic 5702

Conspiracy - General - Pleadings - [See Courts - Topic 129 and Practice - Topic 2230.6 ].

Torts - Topic 5702

Conspiracy - General - Pleadings - The plaintiff alleged that transfers of property from her former husband to his current wife were in violation of the Fraudulent Conveyance Act and other statutes and were made with the intention of depriving the plaintiff of child support - The British Columbia Court of Appeal affirmed a chambers judge's order striking the plaintiff's plea of conspiracy as disclosing no reasonable claim - The real purpose of the plaintiff's conspiracy claim was that a judgment for damages provided additional enforcement remedies for the collection of child support not otherwise available under the family law or creditor protection statutory schemes - However, the conspiracy claim to recover damages caused by the frustration of the proper calculation of child support added nothing to the statutory scheme under the Divorce Act - Further, the tort required proof of actual damages - The plaintiff had not pleaded an inability to enforce any outstanding orders of child support - Any monetary judgment would be prospective in nature and, as such, entirely speculative - Even if the pleadings had adequately disclosed a loss, the conspiracy claimed failed because the statutory remedies provided all of the enforcement tools that the plaintiff sought - The conspiracy claim provided for no better remedy than the plaintiff's claims under the Fraudulent Conveyance Act - See paragraphs 34 to 52.

Torts - Topic 5703

Conspiracy - General - Elements - [See second Torts - Topic 5702 ].

Cases Noticed:

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 15].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

British Columbia v. Imperial Tobacco Canada Ltd. et al. (2011), 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 16].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, consd. [para. 18].

Thompson v. Thompson, [2003] A.R. Uned. 598 (Q.B.), refd to. [para. 25].

J.T.L. v. R.G.L. et al., [2010] B.C.T.C. Uned. 1233; 13 B.C.L.R.(5th) 363; 2010 BCSC 1233, refd to. [para. 26].

Helmy v. Helmy, [2000] O.T.C. 834; 12 R.F.L.(5th) 68 (Ont. Sup. Ct.), refd to. [para. 26].

Kirk v. Kirk et al., [2007] B.C.T.C. Uned. D45; 2007 BCSC 875, refd to. [para. 26].

Reilly v. British Columbia (Attorney General) et al. (2008), 254 B.C.A.C. 161; 426 W.A.C. 161; 77 B.C.L.R.(4th) 230; 2008 BCCA 167, refd to. [para. 32].

Canada Cement LaFarge Ltd. et al. v. British Columbia Lightweight Aggregate Ltd. et al., [1983] 1 S.C.R. 452; 47 N.R. 191, refd to. [para. 37].

Can-Dive Services Ltd. et al. v. Pacific Coast Energy Corp. et al. (1993), 28 B.C.A.C. 157; 47 W.A.C. 157; 96 B.C.L.R.(2d) 156 (C.A.), leave to appeal refused [1993] 3 S.C.R. viii, refd to. [para. 38].

Sale v. Roper Construction Ltd., [1989] B.C.J. No. 2017 (Co. Ct.), refd to. [para. 49].

Gooseaire Humidification Ltd. v. Knowles Brothers Ltd. and Knowles (1979), 27 N.B.R.(2d) 541; 60 A.P.R. 541 (T.D.), refd to. [para. 49].

Chan v. Stanwood et al. (2002), 175 B.C.A.C. 86; 289 W.A.C. 86; 6 B.C.L.R.(4th) 273; 2002 BCCA 474, refd to. [para. 49].

Midland Bank Trust Co. v. Green, [1982] Ch. 529; [1981] 3 All E.R. 744 (C.A.), refd to. [para. 54].

Ward v. Lewis, [1955] 1 All E.R. 55 (C.A.), refd to. [para. 55].

Bank of Montreal v. Tortora et al. (2010), 287 B.C.A.C. 14; 485 W.A.C. 14; 2010 BCCA 139, refd to. [para. 60].

Counsel:

C.M. Rajotte, for the appellant;

P.M. Daykin, Q.C., and E.C. Walker, for the respondents.

This appeal was heard on June 15, 2011, at Vancouver, B.C., by Newbury, Levine and Bennett, JJ.A., of the British Columbia Court of Appeal. On September 6, 2011, Levine, J.A., delivered the following judgment for the court.