Ruling says he deprived his children and ex-wife of share of value of family assets, damages award
The British Columbia Court of Appeal has found that, while the evidence in a separation case supported a woman’s allegation that her former husband abused court processes, the interests of justice warranted dismissing his appeal on its merits.
In J.P. v. K.S., 2025 BCCA 112, the parties met in Vancouver in 1998, started a long-distance relationship, began living together in 2002, and married in 2008. They had a daughter born in 2012 and a son born in 2013.
The parties had a troubled relationship, separated first in 2015 and again in 2016, and finally separated in 2018 after the father assaulted the mother in the family home in the children’s presence. Criminal, civil, and family law proceedings followed the assault and final separation.
The criminal proceedings ended in 2020 when the father pleaded to assault in the Provincial Court.
In the civil proceedings, the mother claimed damages based on the assault and obtained a trial award of nearly $800,000 in 2021. A judge denied the father’s counterclaim and awarded the mother $695,029.68 in pecuniary damages and $100,000 in non-pecuniary damages. In 2002, the judge awarded partial special costs for the pre-trial period. The BC Court of Appeal dismissed the father’s appeal of the civil claim in 2023.
The mother also brought the family proceedings. In July 2023, a trial judge issued orders that allowed the mother to relocate to Germany with the children, made the father pay child support and special and extraordinary expenses, addressed parenting time and communications, and divided the family property. The judge also issued an order under s. 221 of BC’s Family Law Act, 2011 (FLA) to prevent the father from making further applications without permission for two years.
The father appealed the trial judge’s July 2023 decision and her orders dated August 2023 and April 2024. He alleged a reasonable apprehension of bias in the judge’s decisions in her capacity as case management judge, her conduct of the trial, and her decision and orders, as well as errors concerning her property division, property exclusions, and imputation of income to him.
The mother countered that the father abused court processes. She asked the appeal court to dismiss the appeal and refuse to hear it on its merits. She proposed additional evidence responding to the father’s application and supporting her abuse of process claim.
The Court of Appeal for British Columbia dismissed the appeal and admitted the mother’s proposed additional evidence regarding the abuse of process claim upon finding that the evidence met the test in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759.
Next, the appeal court ruled that the father’s conduct in the family litigation abused the judicial process, deserved a firm reprimand, and deprived the mother and children of their share of the value of family assets and the award in the civil proceedings.
The appeal court added that the father disdained the judicial process in line with the ruling in Larkin v. Glase, 2009 BCCA 321. In that case, the BC Court of Appeal chose not to limit the discretion to refuse to hear an appeal’s merits to a party’s disobedience of the order under appeal.
The appeal court agreed with the mother’s claim that the father was using the appeal court and trial court as tools in his coercive and controlling behaviour against her. The appeal court noted it could dismiss the appeal on this ground. However, the appeal court deemed it in the interests of justice to summarily address the appeal’s merits.
On the merits, the appeal court found no reasonable apprehension of bias on the trial judge’s part. The appeal court held that the father’s bias allegations failed to meet the test for reasonable apprehension of bias, whether considered individually or collectively.
The appeal court decided that the judge abided by her duty to manage and adjudicate a high-conflict and lengthy family law matter fairly and efficiently across the pre-trial proceedings and trial. The appeal court said the judge provided detailed reasons to exercise her discretion to adopt the facts in the civil proceedings.
The appeal court rejected the father’s argument that the trial judge relied on other judges’ unfavourable credibility findings against him. The appeal court noted that the trial judge explicitly said these findings did not bind her and gave detailed reasons for deeming the father not credible.
Lastly, the appeal court saw no reviewable errors in the trial judge’s:
her imputation of income to the father for calculating child support under the Federal Child Support Guidelines, SOR/97-175
