Yiannitsopoulos v. Patseas, (1997) 92 B.C.A.C. 98 (CA)

• Judge: Goldie, Rowles and Newbury, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 14, 1997
• Jurisdiction: British Columbia
• Citations: (1997), 92 B.C.A.C. 98 (CA)

Yiannitsopoulos v. Patseas (1997), 92 B.C.A.C. 98 (CA);

    150 W.A.C. 98

MLB headnote and full text

Temp. Cite: [1997] B.C.A.C. TBEd. JN.041

Evanthia Yiannitsopoulos, formerly known as Evanthia Patseas (appellant/petitioner) v. Demetre Patseas also known as Dimitrios Patseas (respondent/respondent)

(CA021058)

Indexed As: Yiannitsopoulos v. Patseas

British Columbia Court of Appeal

Goldie, Rowles and Newbury, JJ.A.

May 14, 1997.

Summary:

A mother petitioned for an increase in child maintenance. A Chambers judge allowed the application, increasing mainten­ance from $250 to $800 per month per child, plus ordered the father to pay all of the children's tuition and education expenses. The mother appealed on the ground that the judge should have ordered retroactive lump sum child maintenance to reflect the many previous years when the monthly mainten­ance was inadequate.

The British Columbia Court of Appeal, Rowles, J.A., dissenting, dismissed the appeal but ordered that the matter of whether the father misrepresented his financial posi­tion in previous proceedings be remitted to the Supreme Court for reconsideration.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - [See both Family Law - Topic 4014 ].

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - [See both Family Law - Topic 4014 ].

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - The British Columbia Court of Appeal held that a Chambers judge had the dis­cretion to make a retroactive award of child support or to order that it be paid in a lump sum - See paragraph 11.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - The British Columbia Court of Appeal stated that child support was generally intended to supply the current and ongoing needs of children and not to build up a capital fund or to effect a division of assets under the guise of maintenance - Lump sum awards, then, were the excep­tion not the rule, and a retroactive award was even rarer given the focus on "cur­rent" needs - Cases in which retroactive lump sum awards have been made have involved clear and compelling evidence of unfairness - See paragraphs 12 to 14.

Cases Noticed:

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 11].

Dusterbeck v. Dusterbeck (1982), 27 R.F.L.(2d) 213 (Sask. Q.B.), refd to. [para. 12].

McMillan v. McMillan (1983), 1 O.A.C. 106; 44 O.R.(2d) 1 (C.A.), leave to appeal refused (1984), 55 N.R. 76; 3 O.A.C. 160 (S.C.C.), refd to. [para. 12].

Hauff v. Hauff (1994), 95 Man.R.(2d) 83; 70 W.A.C. 83; 5 R.F.L.(4th) 419 (C.A.), refd to. [para. 12].

Komori v. Malins (1996), 81 B.C.A.C. 44; 132 W.A.C. 44; 24 R.F.L.(4th) 1 (C.A.), refd to. [para. 12].

Ambrose v. Ambrose (1990), 24 R.F.L.(3d) 353 (Man. C.A.), consd. [para. 14].

Waterman v. Waterman (1995), 133 Nfld. & P.E.I.R. 310; 413 A.P.R. 310; 16 R.F.L.(4th) 10 (Nfld. C.A.), consd. [para. 14].

Allen (Guardian ad Litem of) v. Allen (1994), 9 R.F.L.(4th) 48 (B.C.S.C.), consd. [para. 15].

Oyen v. Oyen (1994), 52 B.C.A.C. 277; 86 W.A.C. 277; 2 B.C.L.R.(3d) 166 (C.A.), refd to. [para. 30].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15(2) [para. 11]; sect. 17(1), sect. 17(3), sect. 17(4), sect. 17(8) [para. 31].

Counsel:

David H. Unterman, for the appellant;

George P. Angelomatis, for the respondent.

This appeal was heard on October 25, 1996, at Vancouver, British Columbia, before Goldie, Rowles and Newbury, JJ.A., of the British Columbia Court of Appeal.

On May 14, 1997, the judgment of the court was rendered, and the following opin­ions were filed:

Newbury, J.A. (Goldie, J.A., concurring) - see paragraphs 1 to 20;

Rowles, J.A., dissenting - see paragraphs 21 to 38.