COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Neufeld
                v. Neufeld,

2005 BCCA
            7

Date: 20050110

Docket: CA032086

Between:

William
      Peter Neufeld

Appellant

(
Plaintiff
)

And

Barbara
      Joanne Neufeld

Respondent

(
Defendant
)

Before:

The Honourable
            Madam Justice Rowles

The Honourable
            Mr. Justice Low

The Honourable
            Madam Justice Levine

J. Fairburn

Counsel for the Appellant

K.E. McNeilly

Counsel for the Respondent

Place and
            Date of Hearing:

Vancouver, British Columbia

November 23, 2004

Place and
            Date of Judgment:

Vancouver, British Columbia

January 10, 2005

Written
              Reasons by
:

The Honourable
            Madam Justice Levine

Concurred
              in by:

The Honourable
            Madam Justice Rowles
The Honourable Mr. Justice Low

Reasons for Judgment of the Honourable Madam Justice
        Levine:

Introduction

[1]

This
      appeal concerns the entitlement to child support of an adult child attending
      university full-time, seeking a post-graduate degree in medicine.

[2]

A
      Supreme Court chambers judge found that the parties' daughter, J., was
      entitled to child support as a "child of a marriage" within the
      meaning of s. 2(1) of the
Divorce Act
, R.S.C. 1985, c. 3
      (2d Supp.). He determined the amount of child support payable by the father
      by applying the
Child Support Guidelines
as if J. were under
      the age of majority (under s. 3(2)(a) of the
Guidelines
).
      The father was ordered to pay both the "table amount" and "special
      and extraordinary expenses" of 50 per cent of J.'s educational and
      residential expenses.

[3]

The
      father appeals. He argues that J. is not a "child of the marriage" and
      if she is, she is nonetheless not entitled to the amount of child support
      determined by the chambers judge. He argues that the chambers judge erred
      in his application of the applicable legal principles to the facts in three
      ways: failing to find that J. could finance her education through student
      loans; giving excessive weight to the family plans that she would attend
      medical school; and failing to find that it was inappropriate to order
      that he pay both the "table amount" and a share of J.'s education
      and residential expenses.

[4]

It
      is my opinion that the chambers judge correctly determined that J. is a "child
      of the marriage". In the circumstances of this case, I would not interfere
      with the amount of child support determined to be payable by the father
      except to order that he pay it in two lump sums of $11,000 each (less 50
      per cent of any scholarships, bursaries and awards received by J.) on July
      1 and January 1 of each year that J. attends medical school, commencing
      July 1, 2004.

Background

[5]

The
      parties were married for 27 years before they separated in 1999. They were
      divorced in 2001. They have two children, J., born in 1981 and a son, born
      in 1984. The father is a medical doctor; the mother a homemaker. At the
      time of the application appealed from, J. had an undergraduate degree and
      had been accepted into medical school at the University of British Columbia
      ("UBC"), in accordance with the family's plans for her education
      before the parents' separation. The chambers judge described J. as an "exemplary
      student".

[6]

In
      the "child support" provisions of their separation agreement
      entered into in December 1999, the parties agreed that the father would
      pay child support for the two children in the "Table Amount",
      then agreed to be $1,450 per month. They also agreed that "all costs
      of education" would be "Special or Extraordinary Expenses",
      and they would "share the costs of reasonable Special or Extraordinary
      Expenses, other than medical or dental expenses, equally." The agreement
      provided that:

13.   The obligation
      to pay Child Support ceases in respect of a Child who:

.
      . .

(c)   becomes 19
      years old, unless the Child remains a "child of the marriage" within
      the meaning of the
Divorce Act
because of inability to become self-supporting
      due to illness, disability, the pursuit of education, or other cause.

[7]

After
      a ten-day trial, in June 2002 L. Smith J. made an order varying the separation
      agreement, but the provisions relating to child support were not changed.
      At that time, J. was an undergraduate. The order required the father to:

. . . pay fifty percent (50%) of the tuition for [J.] to complete her
      undergraduate university program, after application of any scholarship
      or bursary money designated for tuition, as a special or extraordinary
      expense;

[8]

There
      were further disagreements between the parties concerning the amount and
      payment of child support by the father, resulting in an order of Bauman
      J. in March 2003 and a settlement in July 2003. These are not directly
      relevant to the issues in this appeal.

[9]

The
      order appealed from was made on June 30, 2004 in response to cross-applications
      by the parties. The mother brought an application in February 2004 for
      an increase in monthly child support based on a redetermination of the
      father's income and an order that the father "pay his proportionate
      share of the children's tuition, education expenses and housing/meal plan
      costs should the children reside in campus". The father sought an
      order that J. was no longer a child of the marriage, effective June 1,
      2004; alternatively, that support for both children be determined in accordance
      with s. 3(2)(b) of the
Guidelines
; and that all payments
      for the two children be paid directly to them or on their behalf by a family
      trust.

[10]

The
      chambers judge determined the father's income for the purposes of the
Guidelines
was
      $170,000. That determination has not been appealed. The chambers judge
      set child support for the two children as the "table amount" of
      $1,915 per month. The father does not dispute his obligation to support
      his son. Child support for the son only would be $1,207 per month.

[11]

The
      mother's income is spousal support of $3,000 per month.

[12]

The
      chambers judge ordered the father to pay, as an extraordinary expense,
      50 per cent, in accordance with the separation agreement, of J.'s education
      and accommodation (outside the home) expenses for four years of medical
      school. These expenses were determined to be $28,181 in first year, $26,608
      in second year, $24,160 in third year and $28,117 in fourth year, based
      on information obtained from the UBC Medical School website.

[13]

Under
      the order, the father would be required to pay (after excluding $1,207
      per month of child support for his son) the following amounts for support
      of J.:

Year 1

$22,586.50

$1,882.20 per month

Year 2

21,800.00

1,816.67 per month

Year 3

20,576.00

1,714.67 per month

Year 4

20,430.50

2,270.05 per month
(for 9 months)

Total

$85,393.00

[14]

On
      the appeal, the father applied to admit new evidence that J. did not accept
      the position in the medical school at UBC but is attending medical school
      at the University of Calgary. The mother initially objected to the admission
      of new evidence although she responded to it, stating in her affidavit
      that the program in Calgary is less expensive than UBC as it is three full
      years instead of four. She submitted a budget for J.'s expenses in Calgary.
      During oral argument, the mother's counsel abandoned her objection to the
      new evidence.

[15]

As
      the new evidence is not the result of any lack of due diligence and is
      relevant to a proper determination of the issues, I would admit the evidence
      put forward by each party.

Child of the Marriage

[16]

Under
      s. 15.1(1) of the
Divorce Act
, a court may make an order "requiring
      a spouse to pay for the support of any or all
children of the marriage
".
      The definition of "child of the marriage", in s. 2(1) of the
Act
,
      includes a child who:

(b)

is
      the age of majority or over and under their [her parents] charge but unable,
      by reason of illness, disability or other cause, to withdraw from their
      charge or to obtain the necessaries of life;

[17]

The
      parties' separation agreement similarly provides that child support will
      cease for a child who is not a "child of the marriage" within
      the meaning of the
Divorce Act
.

[18]

The
      pursuit of education necessary to equip a child with a career qualifies
      as "other cause" for continuing dependence of a child of or over
      the age of majority:
Martin v. Martin
(1988), 26 B.C.L.R.
      (2d) 390 at 393 (C.A.). In determining whether a child pursuing an education
      is unable to withdraw from her parents' charge or obtain the necessaries
      of life a court must consider the surrounding circumstances; mere attendance
      at an educational institution is not sufficient:
Ciardullo v. Ciardullo
(1995),
      15 R.F.L. (4th) 121 at para. 17 (B.C.S.C.).

[19]

A
      list of relevant circumstances was formulated by Master Joyce (as he then
      was) in
Farden v. Farden
(1993), 48 R.F.L. (3d) 60 at para.
      15 (B.C.S.C.) and referred to by this Court in
Darlington v. Darlington
(1997),
      32 R.F.L. (4th) 406 at para. 14 (B.C.C.A.). These factors were considered
      by the chambers judge, who noted that in
Darlington
, this
      Court made it clear that there does not have to be evidence on all of the
      factors in order to establish that a child is a "child of the marriage" because
      she is pursuing an education. Nor should this list be considered to be
      exhaustive of the relevant factors.

[20]

The
      factors outlined in
Farden
are:

(1)   whether
      the child is in fact enrolled in a course of studies and whether it is
      a full-time or part-time course of studies;

(2)   whether
      or not the child has applied for or is eligible for student loans or other
      financial assistance;

(3)   the career
      plans of the child, i.e. whether the child has some reasonable and appropriate
      plan or is simply going to college because there is nothing better to do;

(4)   the ability
      of the child to contribute to his own support through part-time employment;

(5)   the age
      of the child;

(6)   the child's
      past academic performance, whether the child is demonstrating success in
      the chosen course of studies;

(7)   what plans
      the parents made for the education of their children, particularly where
      those plans were made during cohabitation;

(8)   at least in the case of a mature child who has
      reached the age of majority, whether or not the child has unilaterally
      terminated a relationship from the parent from whom support is sought.

[21]

The
      father's objections to the chambers judge's finding that J. was a "child
      of the marriage" focus on the second and seventh of the factors set
      out in
Farden
. He claims that the chambers judge underemphasized
      the requirement that J. seek student loans to finance her education and
      overemphasized the parents' pre-separation plans for her education.

[22]

These
      two alleged errors may be resolved by the approach taken in
Darlington
.
      The factors set out in
Farden
are not a set of minimum criteria
      all of which must be satisfied. They are relevant factors to be considered,
      along with others that are relevant in the circumstances. The determination
      is fact-specific.

[23]

The
      first alleged error is essentially that the chambers judge failed to find
      that J. has to exhaust other sources of financial assistance, including
      student loans, before she can be found to be unable to withdraw from her
      parents' charge or obtain the necessaries of life.

[24]

As
      the chambers judge noted, the availability of student loans is "merely
      one factor among many to be considered". It is not necessary that
      the child exhaust every source of funding. In this case, this father has
      the means to assist J. with her educational expenses. She is a diligent,
      exemplary student who has contributed to her educational expenses by qualifying
      for and receiving scholarships, bursaries and grants. In fact, the father
      claims that he was not required to contribute to the first two years of
      her undergraduate degree because she received scholarships and grants that
      exceeded her expenses. The chambers judge provided for scholarships, bursaries
      and grants to be deducted from her expenses in determining the amounts
      payable by her parents.

[25]

J.
      will likely need further training after obtaining her M.D. which will limit
      her ability to repay loans on graduation. She should not be put in the
      position of having to incur large amounts of debt to achieve what is agreed
      to be a realistic, achievable educational goal.

[26]

The
      second alleged error is that the chambers judge overemphasized the fact
      that the parents had always planned that J. would go to medical school
      and "follow her father into the family career". The father claims
      that by finding this factor to be "particularly compelling",
      the chambers judge failed to address the "core inquiry" of whether
      she was unable to withdraw from her parents' charge.

[27]

The
      father cited in support of his argument
Maurice v. Maurice
,
      [1993] B.C.J. No. 1461 (S.C.)(QL), where the Court found that daughters
      aged 26 and 21, pursuing "achievable, realistic and legitimate" educational
      goals in second degrees were no longer entitled to child support. The judge
      in that case considered the age, educational levels and abilities of the
      children, and also the "age of the respondent, his income and the
      state of his health".

[28]

In
      this case, the evidence is that the father has sufficient income to support
      J.'s achievable, realistic and legitimate educational goals, and there
      is no evidence that anything about his age or health would limit his ability
      to assist her. Nothing in the separation agreement precluded post-graduate
      education.

[29]

There
      is no general principle that a child seeking a second degree does not qualify
      for child support. As stated by Freeman J.A. for the Nova Scotia Court
      of Appeal in
Martell v. Height
(1994), 3 R.F.L. (4th) 104
      at para. 8:

There is no arbitrary cut-off point based either on age or scholastic
      attainment, although as these increase the onus of proving dependency grows
      heavier.

See also:
Jamieson v. Jamieson
(1995),
      14 R.F.L. (4th) 354 at para. 23 (N.B.C.A.).

[30]

The
      jurisprudence supports the view that there is a wide range of factors to
      be considered in the determination of whether a child is a "child
      of the marriage" and that individual factors will be of varying importance
      in different cases. All of the relevant factors must be considered. There
      is no arbitrary cut-off point based on the number of degrees or the eligibility
      of the student for financial assistance.

[31]

The
      father has not demonstrated that the chambers judge made any error in principle
      or misapprehended the facts of this case so as to permit this Court to
      interfere with the determination that J. is a child of the marriage. I
      would dismiss this ground of appeal.

Amount of Child Support

[32]

The
Guidelines
provide
      two ways to determine the amount of child support for a child of the age
      of majority or over. Section 3(2) provides:

Unless otherwise provided
      under these Guidelines, where a child to whom a child support order relates
      is the age of majority or over, the amount of the child support order is

(a)   the amount determined by applying these Guidelines as if the child
      were under the age of majority; or

(b)   if the court
      considers that approach to be inappropriate, the amount that it considers
      appropriate, having regard to the condition, means, needs and other circumstances
      of the child and the financial ability of each spouse to contribute to
      the support of the child.

[33]

Section
      7 of the
Guidelines
is also relevant. It provides that an
      order for child support may include provision for "special and extraordinary
      expenses", including, in s. 7(1)(e), "expenses for post-secondary
      education". In making an order for payment of special and extraordinary
      expenses, the court is to take into account

. . . the necessity of the expense in relation to the child's best interests
      and the reasonableness of the expense in relation to the means of the spouses
      and those of the child and to the family's spending pattern prior to the
      separation:

[34]

Section
      7(2) provides for the sharing of special and extraordinary expenses. It
      reads:

The guiding principle in determining the amount of an
      expense referred to in subsection (1) is that the expense is shared by
      the spouses in proportion to their respective incomes after deducting from
      the expense, the contribution, if any, from the child.

[35]

In
      rejecting the father's argument that he should apply s. 3(2)(b) of the
Guidelines
,
      the chambers judge did not consider the developing jurisprudence in B.C.
      Supreme Court and other jurisdictions that has found that where an adult
      student is living away from home, determining child support by using the "table
      amount" and adding "special and extraordinary expenses",
      as directed by s. 3(1) of the
Guidelines
for children under
      the age of majority is, in principle, "inappropriate". In those
      cases, child support has instead been determined by applying s. 3(2)(b).

[36]

The
      choice between ss. 3(2)(a) and 3(2)(b) of the
Guidelines
when
      determining child support for an individual who remains a child because
      of his pursuit of post-secondary education was considered by Pitfield J.
      in
Whitley v. Whitley
, [1997] B.C.J. No. 3116 (S.C.)(QL)
      and
Johnson v. Johnson
, [1998] B.C.J. No. 1080 (S.C.)(QL),
      and by Martinson J. in
Griffiths v. Griffiths
, [1998] B.C.J.
      No. 2000 (S.C.)(QL) and
Wesemann v. Wesemann
(1999), 49 R.F.L.
      (4th) 435 (B.C.S.C.).

[37]

In
Johnson
,
      Pitfield J. concluded (at para. 12) that computing child support by reference
      to the tables in the
Guidelines
is not appropriate for students
      who live at home or away from home depending on convenience, affordability
      and need. He found that the cost of post-secondary education, including
      tuition and institutional expenses, room and board or equivalent expenses,
      books, travel and miscellaneous expenses reasonably attributable to or
      arising from the pursuit of that education, should be shared by the parents
      in proportion to their incomes computed with regard for the
Guidelines
,
      after taking into account the amount the student can reasonably contribute.
      Mr. Justice Pitfield commented that s. 7 of the
Guidelines
,
      which provides for the determination and proportional sharing of "special
      or extraordinary expenses", including "expenses for post-secondary
      education", contemplated such an approach. He expressed the view that
      such an order could be made whether or not an order for basic child support
      in the "table amount" was made.

[38]

In
Wesemann
,
      Martinson J. formulated (at para. 6) a four-step test for determining the "appropriate" amount
      of child support under s. 3(2) of the
Guidelines
. Those four
      steps are:

Step One

Decide whether the
      child is a "child of the marriage" as defined in the
Divorce
      Act
? If s/he is not, that ends the matter.

Step Two

Determine whether
      the approach of applying the
Guidelines
as if the child were under
      the age of majority ("the usual
Guidelines
approach")
      is challenged. If that approach is not challenged, determine the amount
      payable based on the usual
Guideline
approach.

Step Three

If the usual
Guidelines
approach
      is challenged, decide whether the challenger has proven that the usual
Guidelines
approach
      is inappropriate. If not, the usual
Guidelines
amount applies.

Step Four

If the usual
Guidelines
amount
      is inappropriate, decide what amount is appropriate, having regard to the
      condition, means, needs and other circumstances of the child and the financial
      ability of each spouse to contribute to the support of the child?

[39]

The
      second and third steps of the test as articulated by Martinson J. require
      that one of the parties challenge the application of the "usual
Guidelines
approach" to
      determining child support. There may be cases, however, where a party has
      not challenged the appropriateness of the application of s. 3(2)(a), but
      the court considers, on the facts of the particular case, that it is inappropriate.
      In my opinion, the absence of a challenge does not preclude consideration
      of s. 3(2)(b) and in such a case, the court should determine child support
      under that provision.

[40]

In
      the case of an adult student living away from home, Martinson J. provided
      the following rationale for finding that the "usual
Guidelines
approach" is
      inappropriate (at paras. 16-18):

The
      usual
Guidelines
approach is based on certain factors that normally
      apply to a child under the age of majority. That is, the child resides
      with one or both parents. The child is generally not earning an income
      and is dependent on his or her parents.

The
      usual
Guidelines
approach is, in most cases, based on the understanding
      that, though only the income of the person paying is used to calculate
      the amount payable, the other parent makes a significant contribution to
      the costs of that child's care because the child is residing with him or
      her.

The closer the circumstances of the child are to those
      upon which the usual
Guidelines
approach is based, the less likely
      it is that the usual
Guidelines
calculation will be inappropriate.
      The opposite is also true. Children over the age of majority may reside
      away from home and/or earn a significant income. If a child is not residing
      at home, the nature of the contribution towards the child's expenses may
      be quite different.

[41]

Whitley
,
Johnson
and
Wesemann
have
      been applied by other Supreme Court judges in determining child support
      for students living away from home under s. 3(2) of the
Guidelines
.
      In
Kembi v. Kembi
, [1999] B.C.J. No. 165 (S.C.)(QL);
McLean
      v. McLean
, 2000 BCSC 433;
Sapergia v. Sapergia
, 2001
      BCSC 818;
Karhoffer v. Karhoffer
, 2002 BCSC 1570; and
Watts
      v. Willie
, 2004 BCSC 1136, the Court held that the "usual
Guidelines
approach" provided
      under s. 3(2)(a) was inappropriate and determined the amount of child support
      under s. 3(2)(b) of the
Guidelines
, taking into account the
      needs and contributions of the student and the ability of the parents to
      assist financially. A similar approach has been adopted in other provinces:
      see
Power v. Hunt
(2000), 196 Nfld. & P.E.I.R. 149, [2000]
      N.J. No. 315 (S.C.)(QL);
Hagen v. Rankin
(2002), 24 R.F.L.
      (5th)

38 (Sask.C.A.);
Samson v. Samson
(2003),
      49 R.F.L. (5th) 202 (Nfld. S.C.(T.D.)).

[42]

In
      my opinion, in principle, support for an adult child who is entitled to
      child support because of his or her attendance at a post-secondary institution
      generally should be determined under s. 3(2)(b). The "table amount",
      as noted by Martinson J. in
Wesemann
, contemplates a contribution
      by the non-custodial parent to the expenses borne by the custodial parent
      in providing a home for the child. The fact that the "table amount" increases
      incrementally and not absolutely for additional children supports that
      interpretation of the intention of the
Guidelines
. The "table
      amount" does not contemplate a child's contribution, which is an important
      factor in considering the amount of support a student requires.

[43]

None
      of the cases I have reviewed considered the interaction among s. 3(2)(b),
      s. 7 and a separation agreement. The relevance of that interaction in this
      case is that the parties agreed that the father would pay the "Table
      Amount" and that "all costs of education" would be "special
      and extraordinary expenses" they would share equally.

[44]

In
Karhoffer
,
      McKinnon J. suggested that if s. 3(2)(b) is applied, then s. 7 should not
      be considered and the court must decide what amount is appropriate. He
      noted that ss. 3(2)(b) and 7(1) both require consideration of the means
      of the child. He cited
McLean
as authority for the proposition
      that where the order is made under s. 3(2)(b) instead of s. 7, the court
      may nonetheless apply the expense sharing principle (see paras. 70-72).

[45]

In
      my view, child support determined under s. 3(2)(b) does not necessarily
      preclude a specific award for "special and extraordinary expenses" under
      s. 7, where appropriate. The existence of a separation agreement that expressly
      deals with specific expenses may lead to such an approach.

[46]

Such
      an approach would have been open to the chambers judge. The order made
      is, however, supportable in the particular circumstances of this case.
      The chambers judge followed the provisions of the separation agreement
      in determining the amount of child support payable for J. as the total
      of the "Table Amount" and 50 per cent of the "costs of education".

[47]

The
      mother did not cross-appeal the refusal of the chambers judge to order
      that the father pay J.'s education expenses on a proportionate basis or
      seek an increased amount of child support. She originally sought an order
      dismissing the appeal, then requested at the hearing that the Court direct
      that child support for J. be paid semi-annually in two lump sums. The total
      of the "Table Amount" (which amounts to an increment for J. of
      just under $8,500 per year) and 50 per cent of the estimated UBC education
      expenses and rent provides a measure of child support that was apparently
      acceptable to the mother.

[48]

The
      father sought an order allowing the appeal on the basis that J. was not
      a "child of the marriage", but did not make any submission on
      the appropriate amount of child support if we held otherwise.

[49]

I
      would order, as requested by the mother, that the father pay child support
      in the amount of $11,000 on each of July 1 and January 1 of each year that
      J. attends medical school, commencing July 1, 2004. Any adjustment for
      (50 per cent of) scholarships, bursaries and grants received by J. will
      be made from the payment next following the receipt of the award.

The mother will obtain from J. a copy of her academic
      transcripts and all information concerning the award of any scholarships,
      bursaries and other financial awards forthwith upon notification. The mother
      will promptly provide this information to the father.

[50]

The
      father has been paying J.'s child support to her directly from a family
      trust. He has agreed to indemnify J. for any income taxes payable by her
      as a result of this arrangement. The chambers judge approved the direct
      payments to J. from the family trust. The mother has not appealed that
      part of his order, and I see no reason to interfere with it in these circumstances
      in any event.

Conclusion

[51]

J.
      is a "child of the marriage" and entitled to child support from
      her father. The amount of child support determined by the chambers judge
      is supportable in the circumstances of this case and was not challenged
      by the mother on the appeal. I would allow the appeal in part, only to
      vary the order appealed from to provide that the father pay, either directly
      or from the family trust, the sum of $11,000 to J. on July 1 and January
      1 of each year that she is attending medical school, commencing July 1,
      2004.

[52]

Subject
      to any submissions the parties may wish to make concerning costs, I would
      order that the mother is entitled to the costs of the appeal.

The Honourable Madam Justice Levine

I AGREE:

The Honourable Madam Justice Rowles

I AGREE:

The Honourable Mr. Justice Low


COURT OF
APPEAL FOR BRITISH COLUMBIA

Citation:

Ruffolo v.
  Juba-Ruffolo,

2005 BCCA 24

Date: 20050110

Docket: CA032352

Between:

Mario Ruffolo

Respondent

(
Plaintiff
)

And

Ruby-Ann
Juba-Ruffolo

Appellant

(
Defendant
)

Before:

The Honourable Madam
  Justice Rowles

The Honourable Madam
  Justice Newbury

The Honourable Mr.
  Justice Hall

Oral Reasons for Judgment

R. Juba-Ruffolo

Appearing in person

R. Isbister

Counsel for the Respondent

Place and Date:

Vancouver, British Columbia

10 January 2005

[1]

ROWLES J.A.:
We are all of the view that this appeal
from the order of Mr. Justice Bouck appointing the respondent as the
administrator of the estate of his son must be allowed and the order set aside.

[2]

The respondent's
counsel has requested that he be given an opportunity to make submissions as to
costs.  We propose that submissions on costs be provided to us in writing and
that the respondent make the first submissions and have 15 days to provide them.
 The appellant will then have 15 days to file her submissions in regard to costs.

[3]

We will deliver written
reasons in respect to our decision but we wished to announce the result today
so that the matter of the appointment of an administrator can go before the
lower court without any delay.

[4]

NEWBURY J.A.:
I agree.

[5]

HALL J.A.:
I agree.

The Honourable Madam Justice Rowles


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Zupan
                v. Vancouver (City),

2005 BCCA
            9

Date: 20050110

Docket: CA30636

Between:

Mario Zupan

Appellant

(
Plaintiff
)

And

The City
      of Vancouver

Respondent

(
Defendant
)

Before:

The Honourable
            Madam Justice Rowles

The Honourable
            Mr. Justice Low

The Honourable
            Mr. Justice Thackray

M. Pongracic-Speier

Counsel for the Appellant

T.M. Zworski

Counsel for the Respondent

Place and
            Date of Hearing:

Vancouver, British Columbia

November 3, 2004

Place and
            Date of Judgment:

Vancouver, British Columbia

January 10, 2005

Written
              Reasons by
:

The Honourable
            Mr. Justice Thackray

Concurred
              in by:

The Honourable
            Madam Justice Rowles

The Honourable
            Mr. Justice Low

Reasons for Judgment of the Honourable Mr. Justice Thackray:

[1]

The
      appellant, Mario Zupan, appeals from an order of the Supreme Court of British
      Columbia dated 7 February 2003, emanating from the judgment of Mr. Justice
      Lowry.  The order dismissed the plaintiffs application for an order to
      maintain an action, in his own name, for wrongful dismissal against the
      City.  The judgment is reported at [2003] B.C.J. No. 287 (Q.L.), 2003 BCSC
      199.

[2]

The
      judge summarized the facts as follows:

[2]   Mr. Zupan is
      the owner of Mario Zupan Trucking Ltd. (the company) which was on a list
      of those the City regularly engaged [to] perform trucking services for
      its engineering department from 1992 until 2001. Mr. Zupan was the principal
      driver of the one truck the company had and operated for the City five
      days of almost every week, but on occasion, a substitute driver drove the
      truck. The company was deleted from the Citys list, and not further engaged,
      when the police reported having found evidence that a substitute driver
      had been using marihuana while operating the truck for the City.

[3]

On
      this appeal no exception is taken to that statement of the facts.  However,
      I will expand them somewhat in order to meet some of the submissions.  The
      Sewer Operations Division of the Engineering Department of the City maintained
      a hired truck list (the list) which was a roster of equipment owners/operators
      approved to perform work for the Department. When there was a shortage
      of City owned equipment, it turned to the list.  Mario Zupan Trucking Ltd.
      (the company) had been on the list since 1993.  The appellant Mario Zupan
      was not on the list.  He was an employee of the company.

[4]

The
      company was registered with the Workers Compensation Board (WCB) as an
      employer and had a business licence with the City.  The companys income
      was determined by the money received from the City less operating expenses
      including the wages of employees of the company.  The company owned one
      truck.  The company was responsible for the wages of the operators of the
      truck, and for expenses such as traffic tickets and overweight fines.

[5]

The
      company was regularly asked by the City to supply its truck.  Because of
      its high ranking on the list, this amounted to full-time engagement of
      the truck. Since Mr. Zupan was the companys only full-time employee, this
      provided him with regular employment.  Mr. Zupans income was directly
      related to the profits generated by the company.  However, while he was
      the primary operator of the truck, other persons employed by the company
      also operated the truck.

[6]

The
      company was removed from the list following a report that a substitute
      driver, who was an employee of the company, had been using marijuana while
      operating the companys truck for the City.

[7]

The
      appellant submits that the relationship between him  and the City was either
      employer/employee or employer/employee-like.  He contends that the judge
      erred in deciding there was no legal relationship between Mr. Zupan and
      the City and in concluding that it was unnecessary to decide whether ...
      the relationship between he and the City was akin to an employer-employee
      relationship as opposed to that of an independent contractor.  [para.7]
      The appellant says that the judge recognized the proper test but jumped
      to a conclusion without considering the full spectrum and the particulars
      of the relationship.

[8]

The
      appellant submits that if Mr. Justice Lowry had analyzed the total circumstances
      he would have had to conclude that he had an employment-like relationship
      with the City.  The particulars that the appellant relies on for this submission
      are as follows.

[9]

The
      City required licencing, certain safety measures and registration for equipment
      and set competency requirements for operators.  The appellant defines these
      as terms and conditions of work.  In response, the City submits that
      these are not conditions of work, but rather are the minimum requirements
      in order to qualify for registration on the list.

[10]

The
      City also required operators to wear certain types of clothing and it unilaterally
      set hourly rates of remuneration.  In response the City correctly points
      out that the clothing requirement was not a requirement of the City, but
      rather of the Workers Compensation Board.  As to unilaterally setting
      an hourly equipment rate, it was the favourable bargaining position of
      the City that gave it this prerogative.  It was not because of the relationship
      between Mr. Zupan and the City.

[11]

The
      appellant further submits that the City was the companys sole source of
      revenue and that the company was the appellants sole source of income.
      This, in my opinion, goes to defining the relationship between Mr. Zupan
      and his company.  Mr. Zupan looked to the company for his income while
      it was the company, not Mr. Zupan, that submitted invoices to the City
      at the end of each day and the City issued cheques payable to the company.

[12]

The
      appellant further submits that in regulating the use of substitute drivers
      the City acknowledged a different relationship with Mr. Zupan in that he
      was the regular driver.  While it is true that the City was controlling
      the use of substitute drivers, it was not creating a contract with Mr.
      Zupan.  Its policy simply required that the company have its truck operated,
      in the main, by its principal driver.  Failing that, by a driver with suitable
      qualifications and not on a regular basis.

[13]

These
      factors, which the appellant deems to be matters of control, should, according
      to the appellant, define his relationship as being that of employment and
      give him a right to reasonable notice of termination.  I agree that the
      requirements of the City exerted a degree of control over Mr. Zupan.  However,
      some of them similarly applied to substitute drivers and it cannot be suggested
      they were brought into an employment-like relationship with the City.  In
      other words, control, as such, is not an absolute in defining the relationship.

[14]

It
      follows that the nature of the work performed, the intimacy between the
      parties and the contractual arrangement must be considered.  These define
      the total circumstances referred to by the appellant. While the reasons
      for judgment of Mr. Justice Lowry do not specifically mention all of the
      internal ingredients upon which he came to his decision, there is no basis
      for the suggestion that he jumped to a conclusion. This Courts statements
      in
Van Mol v. Ashmore
(1999), 168 D.L.R. (4
th
)
      637, 1999 BCCA 6 were adopted by the Supreme Court of Canada in
Van
      de Perre v. Edwards
, [2001] 2 S.C.R. 1014, 2001 SCC 60. Bastarache
      J. said:

[15]... an omission
      [in a judges reasons] is only a material error if it gives rise to the
      reasoned belief that the trial judge must have forgotten, ignored or misconceived
      the evidence in a way that affected his conclusion.  Without this reasoned
      belief, the appellate court cannot reconsider the evidence.

Mr. Justice Lowrys statement that Mr. Zupan had no
      legal relationship with the City allows for no conclusion other than that
      in his opinion the various factors that go to defining the relationship
      did not amount to one that was indicative of employment of Mr. Zupan
.
As
      such, Mr. Zupan was not entitled to notice.

[15]

The
      appellant nevertheless asserts that this Court should find that there was
      an intermediate relationship supporting the right of Mr. Zupan to maintain
      an action in his own name.  The appellant cites
Bird v. Warnock Hersey
      Professional Services Ltd.
(1980), 25 B.C.L.R. 95, [1980] B.C.J.
      No. 2057 (Q.L.) (S.C.).  Mr. Bird, a chartered accountant and financial
      consultant, had a management company which, as found by the Court, rented
      out the skills of John Bird for a fee and thus enabled him to take certain
      tax advantages not available to a single individual practitioner. [para.
      2]

[16]

Mr.
      Justice Locke cited authorities for the proposition that if a person is
      subject to some degree of actual control that this influences the permanency
      of the relationship to the degree that it creates an intermediate area.  This
      intermediate area may be one within which an obligation to provide reasonable
      notice is to be implied.

[17]

Locke
      J. cited
Carter v. Bell and Sons
(1936), 2 D.L.R. 438 (Ont.
      C.A.) as the leading case on this subject and quoted from page 440:

There are many cases
      of an intermediate nature where the relationship of master and servant
      does not exist but where an agreement to terminate the arrangement upon
      reasonable notice may be implied.  This is such a case.  The mode of remuneration
      points to a mercantile agency pure and simple, but the duties to be performed
      indicate a relationship of a more permanent character.  The choice of sub-agents
      and their training, the recommendation of them to the company for appointment,
      the supervision of these men when appointed, all point to this more permanent
      relationship.  The fact that the plaintiff was entering a new territory
      as representative of the defendant and was endeavouring to create a market
      for the defendants products and that to their knowledge he was taking
      his wife and children with him to the west indicate a relationship that
      could not be terminated at will by either party.

[18]

Mr.
      Justice Locke, after narrating the facts in the case before him, said:

[13] From beginning
      to end and obviously for perfectly legitimate tax reasons, Bird arranged
      that the money be paid to his corporate management vehicle, Transfotech
      Ltd.  As a result, no deductions were made by the employer.  Expenses and
      disbursements connected with business were, however, usually paid to Bird
      personally in his own name and some credit cards and club expenses taken
      out in his own name also.  He also received the title of Executive Assistant
      to the President which was a staff position and not a line one ...

[14] ... Bird did
      the work, the money was paid to his corporate vehicle, and the employer
      got what he paid for: work. ...

[15] ... does it matter
      who the plaintiff is here  Bird or Transfotech?  In my opinion, following
      the authorities cited above, it does not: in either case if there were
      only one plaintiff, a Court should hear all of the circumstances relating
      to the contract and conclude that even if there were prima facie indicia
      of Transfotech being an independent contractor only, that this was (as
      was said in Carters case) only a mode of payment.  John Bird was subject
      to the daily control of his employer Warnock Hersey and he falls squarely
      within the intermediate area expressed in that and other cases and in
      the result either he, his company, or both are entitled to reasonable notice.

[19]

This
      conclusion of Locke J. was based upon a finding that,
on the facts
,
      Mr. Bird was in the intermediate area.  But even then he went only so
      far as to find that either he, his company, or both are entitled to reasonable
      notice.  He also noted that this was an action solely to set the term
      of reasonable notice after discharge.  Furthermore, as pointed out by
      the respondent in its factum, the plaintiff was able to establish an employment
      relationship with the defendant independent of the formal arrangements
      with his corporate
alter ego
.

[20]

However,
      the appellant submits that
Bird
was cited with approval in
Marbry
      Distributors Ltd. v. Avrecan International Inc.
(1999), 67 B.C.L.R.
      (3d) 102, 1999 BCCA 172.  The principal of Marbry Distributors Ltd., Mr.
      Gordon Marbry, was also a plaintiff.  The company had a contract with the
      defendant to be its sales agent/distributor in British Columbia of Reebok
      Canada Inc. products.  The agreement which had been in place for ten years
      at the date of termination by the defendant provided that Marbry Distributors
      Ltd. was to perform a wide variety of functions which the judge detailed
      in his reasons and to which I will refer later.

[21]

Mr.
      Justice Braidwood said the first question to be answered was whether reasonable
      notice was required.  In what almost appears to be an aside he said:

[10] First of all,
      I wish to note that the fact that the plaintiff/employee is an incorporated
      company is not a bar to recovery.  In
Bird v. Warnock Hersey Professional
      Services Ltd.
[citation omitted] Mr. Justice Locke refused to attach
      any significance to the technical structure of the parties ...

[22]

Mr.
      Justice Braidwood then quoted paragraph 15 of
Bird
, which
      I quoted above.  The appellant is correct that
Bird
was cited
      with approval in
Marbry,
but as can be seen from the above
      quotation the matter for which it was cited is not relevant to the issue
      in the case at bar.

[23]

Marbry
considered the case law, including
Carter
          v. Bell
, but the focus was on whether the relationship was
          more akin to one of employer/employee than that of independent contractor
          or strict agency.  [para. 19]  As to the intermediate category,
          Braidwood J.A. [para. 38] said that it involves different aspects
          and therefore additional considerations come into play.  He suggested
          that it is helpful in determining where on the continuum an intermediate
          category exists to consider (1) the duration/permanency of the relationship;
          (2) the degree of reliance/closeness of the relationship; and (3) the
          degree of exclusivity.

[24]

Mr.
      Justice Braidwood set out details of the duties undertaken by the plaintiff
      and the control exerted by the defendant.  He said as follows:

[44] I also wish to
      make some comments respecting the degree of control that Avrecan had over
      Marbry.  During the term of the agreement Marbry was required to do the
      following:

(a) maintain
      a showroom containing an inventory of demonstration products;

(b) represent
      Reebok Canada in customer relations in matters of stock shipments, defective
      product and quality control;

(c) conduct
      account collections and monitor accounts receivable on behalf of Avrecan;

(d) distribute
      invoices and collect cheques for Avrecan during postal strikes;

(e) conduct
      product knowledge sessions for Reebok customers retail sales staff;

(f) assist Avrecan
      in tracking down counterfeit Reebok products; and

(g) devote time
      to finding athletes and sports teams to use and promote Reebok.

[45] Having regard
      to Lord Dennings business integration test in
Stevenson
[
Stevenson
      Jordon & Harrison Ltd. v. MacDonald and Evans
, [1952] 1 T.L.R.
      101 (C.A.)], I find that Marbrys activities formed an integral part of
      Avrecans business.  It was Marbry who assisted the set up of the distribution
      network and distributed Avrecans products through that network.  Without
      this function Avrecans products could not have been sold to those customers
      that Marbry serviced.  It can not be said that Marbry performed a function
      that was only accessory to Avrecans pursuit.

[46] For all of the
      reasons expressed above I would classify the relationship between Marbry
      and Avrecan as more akin to employee/employer than that of independent
      contractor or strict agency.  As such, this relationship falls in that
      intermediate category as identified in
Carter v. Bell
, supra,
      where the agreement may only be terminated with reasonable notice.

[25]

It
      will be readily seen that the duties, responsibilities, and control in
      the relationship in
Marbry
is in no way comparable to that
      in the case at bar.  Furthermore, the issue was whether the Marbry Distributors
      Ltd. was in a relationship akin to employer/employee or if it was an independent
      contractor or agent for which no notice of termination was required.

[26]

In
      the case at bar Mr. Justice Lowry held, in effect, that the relationship
      between Mr. Zupan and the City was never on the continuum between employer/employee
      and independent contractor.  In his words, there was no legal relationship
      between Mr. Zupan and the City.

[27]

The
      appellant also relies upon
MacPhail v. Tackama Forest Products Ltd.
(1993),
      86 B.C.L.R. (2d) 218, [1993] B.C.J. No. 2170 (Q.L.)(S.C.), a wrongful dismissal
      action.  In coming to his decision Mr. Justice Leggatt said:

[4]   The arrangement
      between the parties was such that Longspur Management was interposed between
      the plaintiff and the defendants. In all respects other than remuneration
      the normal indicia of an employment relationship continued to exist between
      the plaintiff and the defendants. The plaintiff was personally under the
      direct control of the defendants. He was required to attend at the defendants
      premises, told not only what to do but how, when, and where to do it. The
      plaintiff had no risk of loss nor chance of profit as the remuneration
      paid to Longspur Management was set upon a stated amount. The success or
      failure of this application will depend on the legal significance of the
      plaintiffs use of Longspur Management to take advantage of certain income
      tax benefits.

. . .

[21]  The decision
      in
Bird
guides me in my decision on the defendants Rule
      18A application. The plaintiff is in the same position as the plaintiff
      Mr. Bird in
Bird
. ...

[22]  My decision
      is based on the fact that there is an independent relationship between
      the parties. This relationship exists collaterally to the formal agreement
      between Longspur Management and the defendants. This independent relationship
      is clearly an employment relationship between the plaintiff and the defendant.

[28]

The
      appellant submits that Mr. Justice Lowry misapprehended the message of
MacPhail
.  Mr.
      Justice Lowry said as follows regarding
MacPhail
:

[5] ... The difference
      [between
MacPhail
and the case at bar], however, is that
      the employee in that case had what the court recognized to be an independent
      employment relationship with his employer which was collateral to the agreement
      regarding remuneration between the company and the employer. ...

[29]

In
      my opinion Mr. Justice Lowry was correct in that conclusion and he was
      thus entitled to distinguish
MacPhail
.

[30]

I
      do not find that Mr. Justice Lowry erred in concluding that Mr. Zupan
      had no legal relationship with the City and that Mr. Zupan cannot maintain
      an action for wrongful dismissal against the City.  More specifically,
      I find that there was no employer/employee relationship and no employer/employee-like
      relationship.

[31]

I
      would dismiss the appeal.

The Honourable
Mr.
      Justice Thackray

I Agree:

The Honourable
Madam Justice Rowles

I Agree:

The Honourable
Mr. Justice Low


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Reynolds
                v. Cheng,

2005 BCCA
            16

Date: 20050111

Docket: CA032389

Between:

Donald
      Ross Reynolds

Respondent

(
Plaintiff
)

And

Alice Chong
      Peck Cheng
a.k.a. Peck Cheng Chong a.k.a. Alice Peck Cheng Chong

Appellant

(
Defendant
)

Before:

The Honourable
            Mr. Justice Low

(In Chambers)

G.A. Lang

Counsel for the Appellant

J. Dubas

Counsel for the Respondent

Place and
            Date of Hearing:

Vancouver, British Columbia

16 December 2004

Place and
            Date of Judgment:

Vancouver, British Columbia

11 January 2005

Reasons for Judgment of the Honourable Mr. Justice Low:

[1]

The
      defendant wife in matrimonial proceedings in the Supreme Court of British
      Columbia filed a notice of appeal from an order of Melnick J. upholding
      an order of Master Scarth dismissing a motion brought by the wife seeking
      an order that the court decline jurisdiction.

[2]

Before
      me is a motion by the wife seeking directions as to whether leave to appeal
      is required, if it is required an order granting leave, and if leave is
      granted an order staying the proceedings in the trial court pending determination
      of the appeal.  By a cross motion, the plaintiff husband asks for dismissal
      of the appeal because leave to appeal is required and the defendant did
      not bring her motion for leave within the time required by the rules.

[3]

I
      think that leave to appeal is required.  The trial court rejected the argument
      that it should decline jurisdiction and the result was an interlocutory
      order.  It was not an order that finally determined any of the parties
      substantive rights in the action.  Had the court declined jurisdiction,
      the result might have been different.  This situation is analogous to adding
      parties.  Generally, there must be leave to appeal an order adding parties
      but an order refusing to add parties can be appealed as of right: see
Strata
      Plan VR2124 v. Indal Ltd.
, 2004 BCCA 611.

[4]

As
      to whether leave should be granted, I must consider the factors set out
      in
Power Consolidated (China) Pulp Inc. v. B.C. Resources Investment
      Corp.
(1988), 19 C.P.C. (3d) 396 (B.C.C.A.):

(1) whether the point on appeal is of significance
      to the practice;

(2) whether the point raised is of significance
      to the action itself;

(3) whether the appeal is
prima facie
meritorious
      or, on the other hand, whether it is frivolous; and

(4) whether the appeal will unduly hinder
      the progress of the action.

[5]

I
      have reached the conclusion that this appeal lacks merit, that the points
      raised are not of significance to the action or in general, and advancement
      of the appeal would cause an unacceptable delay of the trial of the action.  I
      am persuaded that the main issue the wife wishes to argue on appeal will
      be addressed at trial.

[6]

I
      will briefly state the basic facts and make reference to other facts in
      discussing the reasons for refusing leave to appeal.

[7]

The
      parties married in 1996 in Singapore.  Their son was born in 1999.  He
      is now almost six years old.  The husband is 54 years old and is a Canadian
      citizen residing in Vancouver.  The wife is 42 years old.  She is a citizen
      of Singapore with landed immigrant status in Canada.  She now lives in
      Singapore with her son.

[8]

During
      the course of the marriage, the wife lived during various periods in both
      Vancouver and Singapore, the husband living in Vancouver at all times.  In
      October 2003 the wife went to Singapore with the child, allegedly without
      telling the husband that she intended the separation to be permanent.

[9]

In
      November 2003 the wife started an action in Singapore for divorce, child
      custody, child support, and division of assets.  The husband appeared conditionally
      in that action and on 19 March 2004 he consented to an order there dealing
      with custody, access and child support.  The order of the master includes
      a provision declining jurisdiction over these issues.

[10]

The
      husband commenced action in this jurisdiction on 16 January 2004.  The
      order of the master is dated 9 July 2004 and the order of Melnick J. is
      dated 6 October 2004.  The appeal to the judge was based on the master
      erring in failing to decline jurisdiction, in dividing the issues to be
      heard between the two jurisdictions, and in failing to find on a balance
      of convenience that Singapore was the preferred jurisdiction for determining
      all issues between the parties.

[11]

Melnick
      J. concluded that the master properly dealt with the issue of the matrimonial
      domicile of the parties.  He continued:

[10]       The appellant left British Columbia in circumstances in which
      it was not apparent that she was going to be leaving British Columbia for
      good.  She apparently started a divorce action when she got to Singapore
      and that was served a couple of months later or close to a couple of months
      later on the respondent.

[11]       I must say that I agree with the appellant when he says that
      it may have been incorrect for the Master to have said that it was just
      a technical point that the Singapore action was ongoing at the time that
      the action here was commenced.  It is true that that action had not gone
      a long way down the road and indeed, even today has not gone a long way
      down the road as these actions go, but certainly has gone arguably somewhat
      further down the road than the action here, if for no other reason than
      this application.

[12]       There is property in British Columbia which is arguably matrimonial
      property.  There is property in Singapore and Australia which may be matrimonial
      property, although that is much less clear.  There may be an application
      for spousal support by the respondent although his right to spousal support
      is unclear with respect to his rights in British Columbia, but it is certain
      in Singapore because in Singapore, a male person is not allowed to obtain
      spousal support from a former female spouse.

[13]       In my view, the issue of comity was dealt with appropriately
      by the Master.  The circumstances of this case illustrate to me that just
      because someone is first out of the gate, particularly in the circumstances
      here where the action of the appellant in going to Singapore, starting
      an action before the respondent was even fully aware of the fact that she
      was leaving him, smacks somewhat of forum shopping.  She should not be
      rewarded for that under the guise of comity.  In my view the learned Master
      properly considered the law and came to the appropriate conclusion on the
      circumstances before her.

[14]       This was an application for the court to decline jurisdiction
      and in my view, in all of the circumstances before her, she quite properly
      did not decline jurisdiction other than with respect to the issues of the
      child, which pragmatically had been dealt with on an interim basis already
      in Singapore.

[12]

In
      this court, the wife wishes to argue that the chambers judge erred by not
      finding error in the reasons of the master.  She says that there was a
      misapprehension of the evidence as to the residence of the parties from
      time to time leading to a wrong conclusion as to matrimonial domicile;
      that there was error in finding that the husband had not attorned to the
      jurisdiction of the court in Singapore; and that there was failure to consider
      a question equality rights of the wife under s. 15 of the
Canadian
      Charter of Rights and Freedoms
.

[13]

I
      understand that the
Charter
argument arises out of a provision
      in the law of conflicts that the rights of the parties with respect to
      moveable property are determined by the law of the matrimonial domicile.  I
      am told that this issue was not raised before the master or the chambers
      judge.  It is not open to the wife to raise it for the first time in this
      court.  In any event, it appears to me the question of matrimonial domicile
      was not determined by the master.  It is an issue that remains to be determined
      at trial and it might govern whether the matrimonial property law of Singapore
      or of British Columbia is to be applied.  The evidence shows that matrimonial
      property law is not substantially different between the two jurisdictions
      and that the applicable law of Singapore is easily proved should the need
      to prove it arise.

[14]

There
      is no suggestion that the master wrongly stated the law to be applied on
      a determination of which is the more convenient jurisdiction to try a matrimonial
      dispute.  She made reference to the leading case of
Amchem Products
      Inc. v. British Columbia (Workers Compensation Board)
, [1993]
      1 S.C.R. 897 and correctly observed that the onus was on the wife to show
      that the trial court in this province was the less appropriate forum for
      the proceeding.

[15]

The
      evidence clearly supported the masters determination that the parties
      cohabited in this jurisdiction before and after their son was born.  She
      thought it reasonable that the last matrimonial domicile of the parties
      was here but said this point is not without controversy, properly leaving
      final settlement of the issue for the trial judge.  I see no merit in the
      wifes argument on the present application that the chambers judge failed
      to recognize the masters confusion of the issue of choice of jurisdiction
      with the issue of choice of law.  It is clear to me that the master discussed
      matrimonial domicile in the context of
forum conveniens
, not in
      the context of a conflict of law issue that, as I have said, she properly
      left for trial.

[16]

The
      master discussed each of the factors to be considered with respect to
forum
      conveniens
set out in
Stern v. Dove Audio Inc.
, [1994]
      B.C.J. No. 863.  I do not see in the wifes argument on this application
      any suggestion that the chambers judge erred in not finding this analysis
      to be wanting.  The master concluded:

[25]       There are factors weighing in favour of each jurisdiction
      as the appropriate forum.  In my view, with the exception of the claims
      relating to the child, the defendant has not clearly established that British
      Columbia is a
forum non conveniens
.

[17]

The
      wife says that the husband attorned to the jurisdiction of the Singapore
      court.  The husband says that this argument was not made to the master.  It
      is not clear to me that it was argued to the chambers judge but he said
      apparently the [husband] did not attorn to the jurisdiction of the Singapore
      court but entered what is called a conditional appearance.  Assuming leave
      might be granted on an issue not argued before the master in the first
      instance, and assuming the issue was fully argued before the chambers judge
      and his comment on it was in response and not merely a useful observation,
      I am not persuaded that there is any merit in the issue.  There was substantial
      evidence to support the conclusion that the husband did not attorn to the
      foreign jurisdiction in the proceedings commenced there by the wife.  I
      see no basis on which this court could rule otherwise.

[18]

In
      my opinion, there is no utility in this appeal for the litigants or for
      the profession in this area of law.  In addition, I am concerned that the
      appeal would unduly hinder the progress of the action that is now set for
      trial on 7 February 2005 having been adjourned twice already.

[19]

The
      application for leave to appeal is dismissed.  It is unnecessary to consider
      a stay of proceedings or the plaintiffs motion for dismissal.

The Honourable Mr. Justice Low