In JP v. KS 2023 BCCA 408 the court considered whether the registrar of the court had erred by denying JP’s application to submit limited portions of the oral transcripts from the court below for his family law appeal. The main issue on appeal was whether the trial judge erred in law by adopting certain facts and credibility findings from a prior civil proceeding for tortious battery between the parties.
Pursuant to Rule 24(3) of the Court of Appeal Rules, a party must obtain transcripts of oral testimony if they are required to determine the issues raised on appeal.
JP asserted that full transcripts were not required to determine the legal question he posed and that the cost of the transcripts was prohibitive. In Dhillon v. Dhillon 2005 BCCA 529 Madam Justice Southin remarked that the cost of filing a complete transcript in this Court is “…so far beyond the means of a litigant to make his or her right of appeal illusory.”
The trial proceedings focused on parent and child relocation to Germany and related parenting issues. Trial judge, Madam Justice McNaughton, held that it would be an abuse of process to relitigate issues decided in the civil proceeding. As a result, she adopted key findings, including the details surrounding a violent incident and related abuse. She also relied on the civil trial findings that KS was a credible witness and JP was not. However, the adoption of the credibility findings from the civil trial were not the exclusive basis for Judge McNaughton’s credibility findings in the family trial, as she engaged in a new credibility analysis for each party and explicitly acknowledged that it would not be appropriate to rely exclusively on the findings in the civil trial, noting that it was, however, relevant to consider credibility findings of other judges, citing Gadhri v. 0760815 BC Ltd. 2019 BCSC 563.
The registrar considered JP’s submissions that only limited portions of the transcript were required for the appeal, and the registrar readily accepted that financial constraints are a valid ground for limiting transcripts where the appeal can still be determined in their absence. The registrar asked JP to outline the errors in law he was alleging and JP identified 20 separate grounds of appeal. After reviewing the grounds of appeal, the registrar determined that many of the alleged errors raised issues of mixed fact and law or discretionary matters which indicated that the entire trial transcript was required to properly assess the issues raised by him.
The appeal court noted that a registrar’s decision is entitled to a high degree of deference, similar to the deference afforded a lower court. The test was whether the registrar erred in principle, misapprehended the evidence, or was clearly wrong. Salloum v. Smith 2023 BCCA 175. During oral argument, the presiding Justice invited JP to consider abandoning some of his 20 appeal issues, but he declined. The court dismissed JP’s application finding that the “matter has a complex litigation history and issues on appeal arise in a fact rich context”. Canlii records 8 previous court proceedings between the parties between 2021 and 2023.
Lawdiva aka Georgialee Lang