Self-Represented Litigant Abandons Trial Only to Seek Remedy From Appeal Court

The British Columbia Court of Appeal delivered reasons in P.R.C. v. C.K.C., 2024 BCCA 363, a high-conflict case, where the self-represented husband abandoned the trial on day three, only to file an appeal of the financial orders on the grounds of procedural unfairness.

However, he did not seek a new trial — rather, he asked the court to admit fresh evidence, not surprisingly, as his early departure from the trial, and the absence of any testimony from him or on his behalf, left a significant void in the evidence.

The appellant husband, Mr. C., age 51 at trial, lived in London, Eng., when the parties met and was employed in the field of information technology. In April 2010, he incorporated a company, CML, from which he conducted his consulting business.

The claimant, Ms. C., age 49, who had a Bachelor of Commerce, worked in the advertising industry in Vancouver. She met her husband when she moved to London to take up a new position in 2011. Prior to her departure to the United Kingdom, she purchased a condo in Vancouver.

The parties began living together in December 2011 in London and married in January 2013. In 2014, the parties purchased a pre-sale apartment in London, which they took possession of in April 2015. Mr. C. contributed 91 per cent of the down payment for the apartment, allegedly using funds from the proceeds of sale of a property owned by him, while Ms. C contributed nine per cent. They equally shared the mortgage payments and other expenses of their new home.

Mr. C. was keen to document their respective interests in the London apartment and provided a copy of a Declaration of Trust to his wife about a year before it was executed by the parties. Ms. C. testified that she understood that the document recorded the parties’ agreement that 55 per cent of the ultimate net proceeds of sale of the property would be divided in proportion to their respective contributions to the down payment, and that the balance would be divided equally between them. 

The document was executed in January 2015. She was not advised to, nor did she, obtain independent legal advice. She explained at trial that their relationship was already on edge, and she didn’t want to rock the boat.

In June 2016, Ms. C. became pregnant and the parties decided to move to British Columbia, moving in with Ms. C.’s parents in Langley and later moving into Ms. C.’s Vancouver condo. The apartment in London was rented out. Their baby was born in March 2017.

Mr. C. obtained a good job in Vancouver working for a major high-end sportswear company but was overwhelmed by the workload and his role as a new father, and quit that position. He began drinking and smoking cannabis and remained unemployed for about a year, finally starting a new position for a major digital gaming company in October 2018.

In the year prior, the parties purchased a townhouse in Langley with funds from the sale of Mr. C.’s consulting business, CML, from which he contributed 35 per cent of the required downpayment.

Unfortunately, the parties continued to struggle in their marriage and after Mr. C.’s new job again proved challenging for him, the interaction between the parties became more toxic and a separation ensued in February 2022.

Upon their separation Ms. C. consulted counsel, learning that the Declaration of Trust did not reflect the agreement she reached with her husband, but rather it provided that he would be entitled to 91per cent of the sale proceeds and she would receive nine per cent, with no compensation for her contributions over the years of joint ownership.

In the aftermath of their separation, Mr. C. began drinking to excess and indulged in recreational marijuana, which led to instability and incivility on his part, behaviour that dramatically affected the parties’ already strained relationship, and his relationship with his now 5-year-old daughter, who he tried to alienate from her mother.

In the two years after separation until the trial commenced, Mr. C. filed 14 applications and multiple appeals, most of which were frivolous and vexatious, leading to an order that further applications required leave of the court. His actions and words towards his wife also resulted in the trial judge finding that she was a victim of family violence.

The property issues to be determined included division of the London apartment, with the accompanying Declaration of Trust, Ms. C.’s Vancouver condo, the family home in Langley, and gold.

The trial judge’s orders resulted in Mr. C. retaining the London apartment and Ms. C. retaining the Vancouver condo and the Langley home, leading to a net value to Mr. C. of $970,232, together with an equalization payment to him of $43,937, for a total of $1,014,169. 

Ms. C. was left with a net value of $1,421,214, with the appeal court surmising, in the absence of explanation from the trial judge, that the difference in net values could be explained by the judge’s findings of excluded property, which favoured Ms. C., and events that occurred after the separation, primarily Mr. C.’s dissipation of gold, valued at $93,000, in the face of an order restricting the disposition of family property.

As well, the trial judge considered that Ms. C. alone had maintained the expenses of the family home and the Vancouver condo since separation. Also notable was the trial judge’s decision to dismiss the suggestion that the London apartment supported a claim for excluded property for Mr. C., a proposition that was untenable, given that his pleadings had been struck, and no evidence was called of the property’s value at the purchase date.

However, Ms. C. did read a portion of her husband’s discovery evidence into the record, testimony that did not assist to establish a value for excluded property. Mr. C.’s form 8 financial statement was also left with the court but was also unhelpful.

The trial judge determined that he did not need to interpret the terms of the Declaration of Trust or its validity at law, but in the event he was wrong, he would find that Ms. C. did not understand the nature or consequences of it when she signed it and would have set it aside pursuant to s. 93(3)(c)of the Family Law Act.

Despite holding high-ranking positions during their marriage, Mr. C. remained unemployed during most of the separation period, advising the court on one occasion that he was bankrupt, homeless and availing himself of local food banks. He was ordered to pay retroactive and prospective child support and was imputed income of $140,000 per annum, payments which would be set off against the compensation payment from his wife.

The appeal court considered Mr. C.’s complaint that the voluminous book of documents proffered by the claimant at trial did “not align at all with any of the evidence” and that “he had not prepared anything about that evidence,” leading to procedural unfairness.

This ground of appeal was rejected by the court, noting that the documents had been listed in accordance with the Rules of Court and Mr. C. had advised the trial judge that he agreed that a large portion of the documents could be admitted and marked as exhibits.

They also held that the respondent’s decision to absent himself from the trial was one he took after the trial judge explained the consequences of doing so, and while sympathetic to a self-represented litigant, the harm that befell him was of his own doing.

Further, without evidence that the gold purchased by Mr. C. and the deposit monies he used for the London apartment came from his own resources, he had failed to prove his claims of excluded property.

The appeal court, relying on Barendregt v. Grebliunas, 2022 SCC 22, admitted fresh evidence relating to procedural unfairness, but ruled that it did not warrant appellate intervention. The balance of the fresh evidence was not admitted, as it consisted of evidence the appellant could have adduced at trial but chose not to. A second “kick at the can” was refused.

Mr. C.’s overriding argument was that the division of property left him financially bereft and unable to remain living in Canada, hence his move to New Zealand, where he attended the appeal via video.

The appeal court summarized Mr. C’s appeal as an attempt to re-litigate matters simply because he was not satisfied with the outcome, accompanied by a dearth of evidence showing any material errors or serious misapprehension of the evidence.

**This article was first published by LAW360, a division LexisNexis Canada.