Yu v. Jordan, (2012) 327 B.C.A.C. 170 (CA)

• Judge: Newbury, Hall and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: August 13, 2012
• Jurisdiction: British Columbia
• Citations: (2012), 327 B.C.A.C. 170 (CA);2012 BCCA 367

Yu v. Jordan (2012), 327 B.C.A.C. 170 (CA);

    556 W.A.C. 170

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. SE.008

Yanhua Yu also known as Yan Hua Yu (respondent/claimant) v. Terance Allen Jordan (appellant/respondent)

(CA039713; 2012 BCCA 367)

Indexed As: Yu v. Jordan

British Columbia Court of Appeal

Newbury, Hall and D. Smith, JJ.A.

September 11, 2012.

Summary:

A mother applied for a variation of a December 17, 2004 consent order that had awarded the parties joint custody and joint guardianship of "the child of the marriage" and ordered them to "both parent the child of the marriage ... as equally as possible" and to "agree on parenting schedules from time to time".

The British Columbia Supreme Court, in a decision reported at [2012] B.C.T.C. Uned. 92, allowed the application and granted the mother primary residence of the child. The father appealed.

The British Columbia Court of Appeal dismissed the appeal.

Constitutional Law - Topic 3618

Paramountcy of federal statutes - Overlapping legislation - Divorce - Maintenance - A court order failed to specify which legislation governed corollary relief provisions for the custody and support of a child of the marriage in a divorce proceeding - Both the Divorce Act and the Family Relations Act (B.C.) had been pleaded - The British Columbia Court of Appeal held that the meaning of a court order was not determined by the parties' stated intention as to its meaning after the order was made, but by objective indicia that could be found in the pleadings of the action, the wording of the order and the circumstances in which the order was made - In the absence of such objective indicia, the doctrine of paramountcy would apply such that the order would be founded in the federal legislation - See paragraphs 1 and 47 to 58.

Constitutional Law - Topic 3620

Paramountcy of federal statutes - Overlapping legislation - Divorce, custody and access to children - [See Constitutional Law - Topic 3618 ].

Family Law - Topic 1947

Custody and access - Variation of custody and access rights - Changed circumstances - General - A court order (Consent Order) failed to specify which legislation governed corollary relief provisions for the custody and support of a child of the marriage in a divorce proceeding - Both the Divorce Act and the Family Relations Act (B.C.) (FRA) had been pleaded - The British Columbia Court of Appeal held that the provisions were made pursuant to the Divorce Act - The language of the Consent Order referred to "the child of the marriage", language taken from the Divorce Act and not present in the FRA - In the absence of the Consent Order specifying which legislative scheme governed its provisions, the doctrine of paramountcy also applied to find that the impugned provisions were made under the Divorce Act - The Consent Order could not be interpreted in retrospect in a manner to reflect what the parties might have intended it to be, but failed to finalize at the time it was made - The only objectively reasonable interpretation of the Consent Order was that its custody and support provisions were corollary relief provisions under the Divorce Act, albeit interim orders as the order for divorce had not yet been granted - Therefore, a material change of circumstances did not have to be established in order to obtain a variation - See paragraphs 13 and 47 to 58.

Family Law - Topic 1947

Custody and access - Variation of custody and access rights - Changed circumstances - General - A mother applied for a variation of a December 17, 2004 Consent Order that had awarded the parties joint custody and joint guardianship of "the child of the marriage" and ordered them to "both parent the child of the marriage ... as equally as possible" and to "agree on parenting schedules from time to time" - The trial judge granted the mother primary residence of the child - The father appealed - The British Columbia Court of Appeal held that the Consent Order was an interim order under the Divorce Act and the mother did not need to prove a material change of circumstances to obtain a variation - Alternatively, the trial judge had not erred in holding that she had established a material change when, after the mother had been unable to care for the child for a number of months after a car accident, the father refused to return to week on/week off parenting as contemplated by the parties - See paragraphs 59 to 64.

Family Law - Topic 2130

Custody and access - Jurisdiction - Variation of order - [See first Family Law - Topic 1947 ].

Family Law - Topic 2383

Maintenance of wives and children - Variation of - Jurisdiction - [See first Family Law - Topic 1947 ].

Family Law - Topic 4059

Divorce - Corollary relief - Custody of children - Interim custody - [See first Family Law - Topic 1947 ].

Family Law - Topic 4063

Divorce - Corollary relief - Custody of children - Variation - Jurisdiction - [See both Family Law - Topic 1947 ].

Family Law - Topic 4080

Divorce - Corollary relief - Interim maintenance - Variation of - [See first Family Law - Topic 1947 ].

Cases Noticed:

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 7].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 9].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 47].

Boznik v. Boznik (1993), 76 B.C.L.R.(2d) 202 (S.C.), refd to. [para. 48].

Pfann v. Pfann, [2008] B.C.T.C. Uned. 220; 2008 BCSC 452, refd to. [para. 49].

Armstrong v. Armstrong (2012), 320 B.C.A.C. 94; 543 W.A.C. 94; 2012 BCCA 166, refd to. [para. 49].

Javid v. Kurytnik - see S.M.J. v. L.M.K.

S.M.J. v. L.M.K., [2006] B.C.A.C. Uned. 138; 2006 BCCA 565, refd to. [para. 50].

Boychuck v. Singleton (2008), 259 B.C.A.C. 188; 436 W.A.C. 188; 2008 BCCA 355, refd to. [para. 50].

Gomes v. Gomes (Keene) (1985), 47 R.F.L.(2d) 83 (B.C.S.C.), refd to. [para. 51].

Spiers v. Spiers, [1995] B.C.T.C. Uned. F93; 15 B.C.L.R.(3d) 148 (S.C.), refd to. [para. 51].

Counsel:

M.R. Ellis, Q.C., for the appellant;

M. Perry and J. England, for the respondent.

This appeal was heard at Vancouver, B.C., on August 13, 2012, by Newbury, Hall and D. Smith, JJ.A., of the British Columbia Court of Appeal. D. Smith, J.A., delivered the following decision for the court on September 11, 2012.