McDonald v. McDonald, 2015 BCSC 1285

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: McDonald v. McDonald, 2015 BCSC 1285 Date: 20150622 Docket: ED66914 Registry: Nanaimo Between: Aaltje McDonald also known as Alice McDonald Claimant And Lawrence Douglas McDonald Respondent Before: The Honourable Madam Justice Gropper On appeal from: An order of a Master of the Supreme Court of British Columbia dated April 2, 2015 (McDonald v. McDonald,ED66914). Oral Reasons for JudgmentIn Chambers Counsel for the Claimant: G.B. SinclairCounsel for the Respondent: C.C. RiversPlace and Date of Hearing: Nanaimo, B.C.

June 22, 2015Place and Date of Judgment: Nanaimo, B.C. June 22, 2015 [1] THE COURT: This is my decision in this matter, McDonald v. McDonald. This is an appeal by the claimant, Ms. McDonald,in respect of a decision of Master McCallum on April 2, 2015, denying her application for interim spousal support. I will begin with thetest to be applied in such an appeal. Legal Framework [2] In Ralph's Auto Supply (B.C.) Ltd. v. Ken Ransford Holding Ltd., 2011 BCSC 999, Fenlon J., as she then was, set out thedifferent standards of review applicable to masters' decisions.

At paragraph 7 she states: Masters began sitting in this Court in late 1989.

The standard of review to be applied on an appeal to a judge of this Court from a master'sdecision has been settled since early 1990: 1) Review of a purely interlocutory decision of a master is a true appeal and the master's decision is not to be interfered with unless itis clearly wrong. 2) A question of law, a final order or a ruling that raises questions vital to the final issue in the case are reviewed by way of arehearing on the merits based on the record before the master; even where an exercise of discretion is involved, the judge appealed tomay quite properly substitute his or her own view for that of the master. (Abermin Corp. v.

Granges Exploration Ltd. (1990), (BC SC), 45 B.C.L.R. (2d) 188 (S.C.) [Abermin], and NorthlandProperties Ltd. v. Equitable Trust Co. (1992), (BC SC), 71 B.C.L.R. (2d) 124 (S.C.) [Northland]). [3] In respect of a decision regarding granting or denying interim spousal support, the decision in De Grandis v. De Grandis(1990), (BC SC), 48 B.C.L.R. (2d) 53 (S.C.), remains the law.

In paragraph 17, Madam Justice Rowles says: Applying the reasoning…in Abermin Corporation to the present appeal, I have concluded that an appeal from a master's order for interimspousal support should not be entertained, unless the order was clearly wrong. By its very nature, an interim support order is not a finalorder, and it does not in any way limit the judge's discretion in determining at trial any issue regarding maintenance.

The Master’s Decision [ 4 ] Master McCallum acknowledged that an application for interim spousal support is a relatively routine matter but he denied interim spousal support to the claimant on the basis that the facts before him were not usual. First, he found that the parties had an agreement about division of their assets and that it was challenged by the claimant, although certain aspects of that agreement had already been put into effect.

He noted that the validity of the separation agreement could not be resolved on an interim application with conflicting evidence and was better left for trial. [ 5 ] Second, Master McCallum determined that the claimant delayed in bringing her application for spousal support and that her needs were modest.

He based this on the evidence of the parties and its conflicting nature and determined that whether the delay was a bar to the claimant in receiving retroactive spousal support also required evidence at a trial. [ 6 ] Third, Master McCallum referred to a potential of double recovery at paragraph 6 of the decision in respect of division of the respondent's pension and says: … No matter how one views the agreement made in 2010, it did, in fact, divide the RRSP holdings they had. It did divide the pension.

It may have been an inappropriate division, but nonetheless, it did occur, and in that sense, the only income that one could consider on an interim support application, given the division that occurred in 2010, would be the respondent's income from his pre-marriage pension. I do not know how much that would be, but in the circumstances, that issue would, militate against making any order today with respect to interim support. Decision [ 7 ] The claimant's argument concentrates on her disagreements with the Master's findings that I have just outlined.

She has not clarified what in Master McCallum's decision is clearly wrong, but asserts that he misapprehended the evidence in several ways and for that reason the decision should be set aside. [ 8 ] It is clear that the claimant did not satisfy the Master that she was entitled to interim spousal support, which is always the first question to be determined. Indeed, as Master Keighley explains in Robles v.

Kuhn , 2009 BCSC 1163 at paragraph 12 , item 7: "Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out." [ 9 ] Master McCallum acknowledged that the evidence was in dispute and the conflicts that arose from the evidence required that the matter be heard in a trial. [ 10 ] The claimant may well be entitled to spousal support, retroactively and prospectively, but she did not satisfy the evidentiary burden to justify an order for interim spousal support. [ 11 ] There is no basis to find that the Master was clearly wrong. He did not misapprehend the evidence.

He was faced with conflicting evidence on an interim spousal support application that could not be resolved. He directed the parties to set the matter for trial and proceed on that basis. [ 12 ] I reiterate that direction. [ 13 ] The claimant has not satisfied me that the Master was clearly wrong. The appeal is therefore dismissed. The respondent is entitled to the costs of this appeal. (SUBMISSIONS RE COSTS) [ 14 ] THE COURT: The respondent made an offer to settle interim spousal support. This is an offer that was on an interim, without prejudice basis.

It was in effect at the time the application before Master McCallum was heard. It did not expire. It is an offer that should reasonably have been accepted, and although Master McCallum determined that there should be costs in the cause, I agree with counsel for the respondent that the cost for today's hearing should be on a double costs basis. [ 15 ] MR. RIVERS: Would that be payable forthwith, My Lady? [ 16 ] THE COURT: I have no reason to order that it be payable forthwith. There are still matters to determine. “Gropper J.”